Professional Documents
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ICSI Company - Law - Share
ICSI Company - Law - Share
ICSI Company - Law - Share
EXECUTIVE PROGRAMME
COMPANY LAW
MODULE 1
PAPER 2
i
© THE INSTITUTE OF COMPANY SECRETARIES OF INDIA
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Monday to Friday
ϐ ȂͻǤͲͲǤǤͷǤ͵ͲǤǤ
Phones
ͲͳͳǦͶͳͷͲͶͶͶͶǡͶͷ͵ͶͳͲͲͲ
Fax
ͲͳͳǦʹͶʹʹ
Website
Ǥ Ǥ
E-mail
̷ Ǥ
ii
EXECUTIVE PROGRAMME
COMPANY LAW
In view of increasing emphasis on adherence to norms of good corporate governance, Company Law assumes
an added importance in the corporate legislative milieu, as it deals with structure, management, administration
and conduct of affairs of Companies. Paper on Company Law is divided into three parts:- Part I deals with
Company Law, Principles & Concepts, Part II deals with Company Administration and Meetings – Law and
Practices and Part III deals with Company Secretary as a Profession.
Part I emphasises on principles and legal fundamentals with respect to the raising of capital through various
sources, allotment of securities, maintaining of records, disclosure and transparency, members and their
shareholding, concerns of stakeholders. This also guides on the secretarial and strategic work involved in above
stated matters.
Part II relates to the fundamental role that a board of directors play in supporting, guiding the management
team in generating long term added value for the shareholders and society at large and to account to the
shareholders for companies long term performance. Right decision making is important for company’s growth,
board meetings leads to greater strategic decision making whereas the shareholder meetings leads to greater
transparency and accountability. Company secretary plays a vital role in preparation, convene and conduct of
the meetings.
A key expectation of members of self-governing professions is that they accept legal and ethical responsibility
for their work and hold the interest of the public and society as paramount. One of the essential traits of a
profession is to be subject to strict codes of conduct enshrining rigorous ethical and moral obligations. In a self
regulated regime, Company Secretary subjected to a strict code of conduct is looked upon by the regulators, as
ethical and trustworthy professional whose professional judgment and competence has made a mark in the
corporate sector. It is a moral duty of all of us as Company Secretaries to strictly abide by the Code of Conduct
laid down by the Council of the Institute.
Part III relates to conduct of company secretaries, discusses brief
ǤǤϐǤ
This study material is published to aid the students in preparing the paper on Company Law for Executive
Programme. It is part of the educational kit and takes the students step by step through each phase of preparation
emphasizing key concepts, principles, pointers and procedures. Company Secretaryship being a professional
course, the examination standards are set very high, with focus on knowledge of concepts, their application,
procedures and case laws, for which sole reliance on the contents of this study material may not be enough. This
study material may, therefore, be regarded as the basic material and must be read along with the Bare Acts,
Rules, Regulations, Case Law.
The legislative changes made upto ǡʹͲʹͳ have been incorporated in the study material. The students to be
conversant with the amendments to the laws made upto six months preceding the date of examination. It may
happen that some developments might have taken place during the printing of the study material and its supply
to the students. The students are therefore advised to refer to the updations at the Regulator’s website,
Supplement relevant for the subject issued by ICSI and ICSI Journal Chartered Secretary and other publications
for updation of study material. In the event of any doubt, students may contact the Directorate of Academics at
academics@icsi.edu.
Although due care has been taken in publishing this study material, the possibility of errors, omissions and/or
discrepancies cannot be ruled out. This publication is released with an understanding that the Institute shall
not be responsible for any errors, omissions and/or discrepancies or any action taken in that behalf.
Should there be any discrepancy, error or omission noted in the study material, the Institute shall be obliged if
the same is brought to its notice for issue of corrigendum in the e-bulletin ‘Student Company Secretary’.
iii
Ȃ
This study material is divided into three parts with following weightage of marks:
Part I - Company Law, Principles & Concepts (50 Marks)
Part II - Company Administration and Meetings – Law and Practices (40 Marks)
Part III- Company Secretary as a Profession (10 Marks)
This part of the study deals with the evolution of company law whether indian or international, sources of
funding the company, shareholders, shareholding, responsibility & accountability of the company with respect
to transparency and disclosures, secretarial and strategic work involved.
Company Secretaries, over a period of time, have developed themselves as professionals having core competence
in compliances and corporate governance, moving from their traditional role of Company Secretary of the
Company. Company law is the core area of practice for the company secretary professionals whether in practice
or employment. This part imparts expert knowledge of the various provisions of the Companies Act, its
ǡǡϐ ǡ Ƭ Ǥ
Company directors are responsible for the management of their companies. They must act in a way most likely
ϐǤ
in company governance and setting the strategic direction of the business. The right board of directors brings
ǡ ǡ ϐ
technology. They also have responsibilities to the company’s employees, its trading partners, and the state.
Companies use board meetings to create and improve key business strategies. Hence from company secretary
point of view meeting preparation is vital: from setting up right papers, circulating meeting papers in advance
to providing all kinds of supplementary support to the meeting. A collection of resources on company
ϐǡ ǡ
company secretaries.
Ȉ ϐ ǡ
responsibilities with the directors under the Companies Act.
Ȉ According to Section 205 of the Companies Act, 2013 the Company Secretary shall discharge following
ǡϐ ϐ
the company law:
» To report to the Board about the compliance with the provisions of this Act.
» To ensure that the company complies with the applicable secretarial standards.
» To provide to the directors of the company the guidance they require in discharging their duties,
responsibilities and powers.
» To facilitate the convening of meetings and attend Board, committee and general meetings and maintain
the minutes of these meetings.
iv
» To obtain approvals from the Board, general meeting, the government and such other authorities as
required under the provisions of the Act.
» To assist and advise the Board in ensuring good corporate governance and in complying with the
corporate governance requirements and best practices.
A Professional is a person who has completed formal education and training in a profession. A Professional is
subject to strict codes of conduct enshrining rigorous ethical and moral obligations. A Professional is an
interface between business and society. Professionals are expected to conduct themselves in such a manner so
as to uphold the grace, dignity and professional standing of their respective institutes. Any commitment to
complete a particular assignment as agreed by the person himself should be completed in a professional
manner. This section gives an overview of the code of conduct that applies on the professional conduct of
company secretaries, discusses brief about Secretarial Standards Board and future of professional practice i.e.
ϐǤ
v
EXECUTIVE PROGRAMME
MODULE 1
PAPER 2
ȋͳͲͲȌ
ǣ
ͳǤ ǣ Jurisprudence of Company Law; Meaning, Nature, Features of a company;
Judicial acceptance of the company as a separate legal entity; Concept of Corporate Veil, Applicability of
Ǣϐ Ǥ
ʹǤ ǣMeaning and types of Capital; Concept of issue and allotment; Issue of Share
ϐ Ǣ Ǣ Ǣ
and Bonus Shares; Sweat Equity Shares and ESOPs; Issue and Redemption of preference shares; Transfer
and Transmission of securities; Buyback of securities; dematerialization and rematerialization of shares;
Reduction of Share Capital.
͵Ǥ ǣ ǢǢ ϐ
Ǣ ϐ Ǣ Ǣ ǯ Ǣ
Shareholders Democracy; Shareholder agreement, Subscription Agreements, Veto powers.
ͶǤ ǣ Issue and redemption of Debentures and Bonds; creation of security;
Debenture redemption reserve; debenture trust deed; conversion of debentures into shares; Overview of
Company Deposits.
ͷǤ ǣǢǡϐ ǢǢ
Ǣ Ǣ ϐ
charges.
Ǥ ϐ Ȃ ǣ ϐ ϐǢ
Payment of Dividend; Unpaid Dividend Account; Investor Education and Protection Fund; Right to
dividend; rights shares and bonus shares to be held in abeyance.
Ǥ ǣ Applicability of CSR; Types of CSR Activities; CSR Committee and
ǢϐǢǤ
ͺǤ ǡǣ Books of Accounts; Financial Statements; National Financial Reporting
Ǣ Ǧǡ ǡ ϐ
ϐ ǢǡǢǯǢǢ Ǣ
Internal Audit; Change in Financial Year.
ͻǤ ǣ Board’s Report; Annual Return; Annual Report; Website disclosures;
Policies; Active; Disclosure in Financial Statement.
ͳͲǤ Ǧ ǡ ǡ ǡ
Ǥ
vi
ͳͳǤ ǣ Maintenance and Disposal.
ͳʹǤ ǣ Introduction of Compromises, Arrangement and
amalgamation, Oppression and Mismanagement, Liquidation and winding-up; Overview of Registered
Ǣϐ Ǣ Ǥ
ͳ͵Ǥ ʹͳ Ǥ
ͳͶǤ ǣ Ǥǡ
Practical Aspects.
ͳͷǤ ǣ Board composition; Restriction and Powers of Board; Board
Committees- Audit Committee, Nomination and Remuneration Committee, Stakeholder relationship
Committee and other Committees.
ͳǤ ǣ ǡ Ǣ Ȁ ǡ ϐ ǡ
ϐ ǡ ǡ ǡ Ǣ Ǣ
Ǣ Ǣ Ǣ ǯǤ
ͳǤ ǣ
Ǣ Ǧ ǡ ǡ ϐ
ϐ Ǣ Ȃ ǡ ǡ
Ǣ Ǣ ϐ Ǣ
Managerial Personnel Declaration by the Directors.
ͳͺǤ ǣ Frequency, Convening and Proceedings of Board and Committee
meetings; Agenda Management; Meeting Management; Resolution by Circulation; Types of Resolutions;
Secretarial Standard – 1; Duties of Company Secretaries before, during and after Board/Committee
Meeting.
ͳͻǤ ǣ ǢǢ Ǣ
Types of Resolutions; Notice, Quorum, Poll, Chairman, Proxy; Meeting and Agenda; Process of conducting
meeting; Voting and its types-vote on show of hands, Poll, E-Voting, Postal ballot; Circulation of Members’
Resolutions etc.; Signing and Inspection of Minutes; Secretarial Standard-2; Duties of Company Secretaries
ǡ Ǥ
ʹͲǤ ǣ ǡƬ Ǥ
ʹͳǤ ǣ The Company Secretaries Act, 1980 along with
Rules and Regulations; Disciplinary Mechanism and Penalties for Professional Misconduct; Ethics in
Profession, Professional Liabilities.
ʹʹǤ ǣ Secretarial Standards Board of ICSI; Process of making Secretarial
Standards; Need and Scope of Secretarial Standards.
ʹ͵Ǥ ǣ ϐǢϐϐǡ ǡ
between partners; management of Firm; Collective multidisciplinary expertise; Public Relation and Brand
Building.
vii
LESSON WISE SUMMARY
COMPANY LAW
ͳǣ
A Company is a legal entity, allowed by legislation, which permits a group of people, as shareholders, to apply
to the regulators for an independent organization to be created, which can then focus on pursuing set objectives,
and empowered with legal rights which are usually only reserved for individuals, such as to sue and be sued,
own property, hire employees or loan and borrow money. These distinct fundamental legal features and
characteristics of a company makes it more advantageous over other forms of business like sole proprietorship,
Hindu undivided family, partnership, Limited Liablility Partnership, etc. The Lesson gives an insight of the
distinct features of the company and advantages otherwise.
A company is regarded as a distinct legal entity and is said to cast a veil between the company and its human
constituents, ‘the corporate veil’. This veil can be pierced for the purpose of imposing some form of liability on
a company’s shareholders and / or directors. There are many court cases and exceptions to this which have
been discussed in detail in this Lesson.
To understand a piece of legislation it is important to understand what was the need of this legislation?, what
practices were being followed?, what were the expectation of the stakeholders?, what led to creation of
legislation?
Company Legislation in India owes its origin to the English Company Law. The Companies Acts passed from
ǡ ϐ Ǥ
ǡͳͻͷǡǤǤ ǡͳͻͶͺǤ
ϐ ͳͺͷͲ
which was based on the English Companies Act, 1844. This Act recognised companies as distinct legal entities
but did not introduce the concept of limited liability. The concept of limited liability, in India, was recognised for
ϐ ǡͳͺͷ ǡͳͺͷǤ
1956, the business companies in India were regulated by this Act of 1913. Based on Bhabha committee report
Companies Act 1956 was introduced.
As the business evolved need was felt to introduce the Company Law in a fresh manner considering the changes
in the systems and procedures worldwide. Companies Act, 2013 was passed after decade long deliberations
with stakeholders.
This Lesson gives an overview of the developments of company law and discusses the features of a company
form of business.
ʹǣ
Importantly share capital refers to the funds that a company raises in exchange for issuing an ownership
interest in the company in the form of shares. “Share capital” may also describe the number and types of shares
that compose a company’s share structure. There are two general types of share capital, which are equity and
preference shares.
For running a company it is important to understand the options available to fund the projects of the company.
The Company Law permits various options which can be availed to generate funds. There are various ways to
raise capital which include preferential allotment, employee stock option, issue of rights shares and issue of
Ǥ ǡ ǡϐǡ ǡ
etc. which are prescribed under Chapter IV of the Companies Act, 2013 read with Companies (Share Capital and
Debentures) Rules, 2014.
There are several compliances that need be done pre and post the securities are issued such as issue of share
ϐ ǡǡǡ Ǥ
basic modalities of issue of securities and allotment thereunder.
viii
The shares of a company are freely transferable. The shareholding can either be maintained in physical form or
demat form. The law is very clear with the procedure to be followed to transfer the shares, still there remain
Ǥ ϐ
members. This Lesson gives an insight on this.
Buy back of shares is not reduction of capital. Buy-Back is a corporate action in which a company buys back its
shares from the existing shareholders usually at a price higher than market price. Reduction of capital by a
ϐ Ǥ
As a prospected company secretary understanding of processes involved in raising of capital, issuance of
securities, reduction of share capital, buy-back is of utmost importance. This Lesson provides an overview on
the subject covering both theory and practical aspects.
͵ǣ
Members may come and members may go but the company goes on for ever.
A person whose name is entered in the register of members of a company becomes a member of that company.
The register includes every single detail about the member like name, address, occupation, date of becoming a
member, etc. It also includes every person who holds company’s shares and whose name is entered as the
ϐ Ǥ
known as a ‘Shareholder.’
The terms shareholders and members are commonly used as synonyms, as one can become a member of the
company, except by way of holding shares. In this way, a member is a shareholder and a shareholder is a member.
The statement is true but not completely, as it is subject to certain exceptions, i.e. a person can become the
holder of shares through transfer, but is not a member, until the transfer is entered in the register of members.
This Lesson gives an insight on secretarial practices expected to be known by the prospected company
secretaries on maintaining register of members, shareholder agreement etc.
Ͷǣ
An issue of debenture plays a great role in long-term planning and decision-making. In modern competitive
ǡ Ǥϐ ϐ
issuing owner’s capital and debt capital. The issue of debenture, in one side creates the obligation for the
ϐ ǡ Ǯ ǯ
comparatively less number of shares issued.
Companies need to follow certain procedures for issue of debentures to raise money. These have been elaborated
under Companies Act, 2013 and have been discussed in this Lesson.
ϐ ǡʹͲͳ͵ȋDzʹͲͳ͵ dzȌ
deposit or loan or in any other form by a company. However what shall not constitute deposits has been prescribed
under law in consultation with the Reserve Bank of India. The Lesson provides an overview of the same.
ͷǣ
A charge is a right created by any person including a company referred to as “the borrower” on its assets and
ǡǡϐ ǡDzdzǡ
ϐ Ǥ
ʹȋͳȌ ǡ ʹͲͳ͵ ϐ
property or assets of a company or any of its undertakings or both as security and includes a mortgage The
following are the essential features of the charge which are as under:
1. There should be two parties to the transaction, the creator of the charge and the charge holder.
2. The subject-matter of charge, which may be current or future assets and other properties of the borrower.
͵Ǥ ϐ
repayment of the borrowed money together with payment of interest at the agreed rate should be
manifested by an agreement entered into by him in favour of the lender, written or otherwise.
ix
ǡ ʹͲͳ͵ ǡ ϐ Ǥ
prospected company secretary you are expected to advise the management on the subject and ensure
compliance to the same.
ǣϐȂ
ϐϐ
ϐǤ
the shareholders the Companies Act, 2013 provides for elaborate mechanism where the shareholders can claim
the shares through an authority constituted for the purpose i.e. Investor Education and Protection Fund (IEPF).
The Act clearly enunciates the procedure for transfer of unpaid dividend to separate account and thereafter
after particular time period to the authority. The company has to mandatorily comply with the legal requirement,
ǡϐ ǯǤ
ϐ ǡ
shareholder and company management. This Lesson shall enable the readers to understand the procedures
and implement the same while practically operating.
ǣ
ȋȌ ϐ
Companies Act, 2013. With the enactment of the Companies Act, 2013, India has become the forerunner to
mandate spend on Corporate Social Responsibility (CSR) activities through a statutory provision. India has a
tradition of corporate philanthropy, while many corporate houses like TATA, Birlas have been traditionally
engaged in doing CSR activities voluntarily, the new CSR provisions has put a greater responsibility on companies
in India to set out clear CSR framework.
ʹ Ψ ϐ ϐ
parameters. The Board has been held responsible to ensure compliance with the provision. Non-compliance of
ϐ ǯǤ
This Lesson details the framework that the company has to comply with right from the constitution of the
committee, to its role and manner in which a company can carry out its CSR activities, and CSR reporting. As a
company secretary you have to guide the Board on the subject.
ͺǣ ǡ
Maintaining of company Book of Accounts is mandatory for all types of companies under the Companies Act,
2013. Private Limited Company, One Person Company and Limited Company including Small Companies are
required to maintain proper book of accounts. Further, the Books of Accounts of a Company is the basis on
ϐ ϐǤǡ
of proper company account is both mandatory and necessary.
According to the Companies Act, 2013, a Company’s Book of Accounts is considered to be maintained properly
ϐ ǣ
Ȉ Books which are necessary to give a true and fair view of the state of affairs of the company is kept along
with the documents required to explain the transactions.
Ȉ Books are kept on accrual basis and according to the double entry system of accounting.
Having an effective audit system is important for a company because it enables it to pursue and attain its various
corporate objectives. Business processes need various forms of internal control to facilitate supervision and
monitoring, prevent and detect irregular transactions, measure ongoing performance, maintain adequate
business records and to promote operational productivity.
Auditing is a means of evaluating the effectiveness of a company’s internal controls. Maintaining an effective
ǯ ǡϐ
reporting on its operations, preventing fraud and misappropriation of its assets, and minimizing its cost of
capital. Both internal and independent auditors contribute to a company’s audit system in different but
important ways.
x
The Lesson details the maintenance of accounts in the company and how the auditors have to be appointed, role
of auditors and legal provisions relating to the same.
A company has to undertake secretarial audit, cost audit, statutory audit as per the threshold requirement
under law.
As a company secretary this is an important area and must be well understood by the readers.
ͻǣ
Transparency and disclosure are fundamental to the way businesses are conducted. Transparency and
disclosure are essential elements of a robust corporate governance framework as they provide the base for
informed decision making by shareholders, stakeholders and potential investors in relation to capital allocation,
ϐ Ǥ
responsibilities on the corporation by imposing to disclose true and fair picture to every stakeholder and
different stakeholder groups.
A company has to make disclosures in Board ‘s Report under various enactments. Companies Act, 2013, SEBI
(Listing obligations and Disclosure Requirement) Regulations, 2015 and, Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 have mandated disclosures at many places.
The Lesson also discusses the disclosures to be made by the company on the website, through its Annual report
and Annual return. SEBI (Listing Obligations and Disclosure Requirement) Regulations, 2015 requires listed
entities to maintain various policies. This Lesson gives an overview of the same.
As an important part of secretarial practice this Lesson shall enable prospected company secretaries to
understand the various disclosures required and would help them to guide the Board and management not only
ϐ Ǧϐ ϐ
disclosures.
ͳͲǣ ǡ ǡ ǡ
ϐ
funds to group companies or other companies in need of funds. The Companies Act, 2013 (Act) has come up
with a change in the concept of ‘Loan and Investment by Company. The new Act provides that inter-corporate
investments not to be made through more than two layers of investment companies.
Transactions with related parties are a basic human instinct. This applies both for personal & commercial
Ǥ ϐ Ǥ
possibility that such transactions might have not occurred on ‘arm’s length’ consideration. Related party
transactions adopted by the companies could be a possible tool for corporate abuse. Transfer of economic
resources to the related party at less than arm’s length price is necessitated for host of reasons ranging from
evasion/avoidance of tax liability to siphon-off the resources. That’s why various laws and regulations stipulate
the deeper scrutiny and the greater disclosures of such transactions. The Companies Act, 2013 does provide for
ǡ Ǥǡ ϐ
interest The lesson examines the legal provisions with respect to related party transaction; inter corporate
loans, investments, guarantees and security. This Lesson enables the students to understand the legal framework
and guide the board members and shareholders in future.
ͳͳǣ
The Companies Act, 2013 and the rules made there under lays down that every company incorporated under
the Act has to maintain Statutory Registers.
ϐ
company. Some of the Registers are required to be kept open for inspection by directors, members, creditors
and by other persons. A company is required to provide the extracts from the registers, if demanded by directors,
ǡ ϐǤ
The registers and records are to be preserved for certain period for some or the other reason. This is of absolute
xi
importance for the secretarial practice whether by company secretary in employment or in practice. This
Lesson covers all the registers to be maintained by the company under the Act and shall enable the understanding
of the same.
ͳʹǣ
Corporate reorganization requires compliances of Companies Act, 2013, SEBI (Listing Obligations & Disclosure
Requirements) Regulations, 2015, Indian Stamp Act 1899, income Tax Act, 1961 etc.
Apart from complying with the rules and regulations of an organisation, the company secretary also plays a
pivotal role in corporate restructuring exercises.
This Lesson gives an overview of the legal and procedural requirement to be complied by the company. As a
prospected company secretary you are expected to guide the Board and management on the proper restructuring
model, legal and procedural technicalities etc. this Lesson would enable you to gain knowledge of the subject.
ͳ͵ǣ ʹͳ
A very important area of work of company secretaries relate to secretarial practice. MCA 21 is a portal which
ϐ ǡʹͲͳ͵Ǥ
portal and discusses certain details of various forms to be submitted to MCA.
ͳͶǣ
Indian Company Law is based on various best practices from around the world. This is a theory based Lesson
which gives you an idea of how the developments across various nations have impacted the country’s corporate
law. This Lesson covers salient features of company law emerged/ emerging in the following countries:
Ȉ
Ȉ The United States of America
Ȉ Australia
Ȉ Canada
Ȉ
Ȉ Singapore
Ȉ Finland
ͳͷǣ
The Board of director is the ultimate decision – making body and determines the delegation of powers
throughout the company; it is considered to be the primary organ of the company. The role of the Board is
summarized as:
Ȉ Providing entrepreneurial leadership
Ȉ Setting strategy
Ȉ ϐ
Ȉ Reviewing management performance
Ȉ Setting up company’s values and standards
Ȉ ϐ
This Lesson guides on the constitution of the Board, its powers and restrictions. Board committees are
constituted in accordance with Companies Act, 2013 and SEBI (Listing Obligations & Disclosure Requirements)
Regulations, 2015, the Lesson discusses the same and the major role assigned to them under law.
ͳǣ
The directors play a very important role in the day to day functioning of the company. It is the board, who is
responsible for the company’s overall performance. Only individuals can be appointed as directors of a company.
ϐ Ǥ
xii
Thereafter the shareholders or in many cases the board of directors appoint the directors.
The Act has brought in many new provisions such as appointment of women director, resident director,
independent director by certain class of companies. The Lesson discusses the procedure for appointing the
various types of directors, the rights, duties of a director.
As a company secretary you should be in know of the subject.
ͳǣ
ʹͲͳ͵
level of the organizational structure. In the new Act the position of company secretary has been enhanced
multifold, from record keeper to key managerial personnel. A present day company secretary is expected to do
statutory, administrative, managerial and strategic functions.
ǡ Ǥ
ͳͺǣ
Under Companies Act, 2013 the Board has to meet atleast four times in a year and not more one hundred and
twenty days shall intervene between two consecutive Board meetings. The committees have to meet in
accordance with the terms of reference of the committee. As a company secretary you need to guide the
members on the conduct of affairs of the company and facilitate the convening of meetings and attend Board
and Committee meetings and maintain minutes of these meetings.
This Lesson gives the basic idea of holding a meeting of the board or committee.
ͳͻǣ
A company may have many kinds of meetings; general meetings are one among them. In very simple terms, a
Ǥ
an recognized on that is company in our case.
ȋ Ȍǡ ȋ Ȍ
meetings.
A company secretary plays a critical role in preparation, convening, holding and conducting a meeting. This
Lesson gives an overall idea of not only legal framework but also secretarial work involved in conducting a
meeting.
ʹͲǣ
The new Act permits for meeting of Board of directors through video conferencing or audio conferencing. The
Lesson discusses the broad parameters of holding such meetings and the restrictions thereat.
Ǧ Ǧ
still not practiced in India.
ʹͳǣ
Professionals are expected to conduct themselves in such a manner so as to uphold the grace, dignity and
professional standing of their respective Institutes. Any commitment to complete a particular assignment as
agreed by the person himself should be completed in a professional manner.
The purpose of this Lesson is to explain to the students, expectation as a member with respect to various
Ǥϐ
ǡ ϐ ǡ
students (the future members) of the Institute to maintain the culture of honesty, integrity, transparency and
accountability.
ʹʹǣ
A company needs to comply with the mandatory requirement of compliance with the Secretarial Standards. A
company secretary in whole time employment is required to guide the Board of Directors of the company on the
xiii
compliances of the secretarial standards. On the other hand a practicing company secretary while conducting
secretarial audit has to ensure the compliance. This Lesson shall give the readers a broader perspective of how
the standards are formulated and developed.
ʹ͵ǣ
In a rapidly changing economy, industrial environment and emergence of the need for corporate governance
and ethical business practices of voluntary disclosures, role of a practicing company secretary has also changed
swiftly. Company Secretary in Practice has become a crucial player. The stakeholders are becoming vigilant
towards the compliances. It is the prime duty of a professional to meet the expectations of the stakeholders at
any given point of time.
Company Secretary in practice may face technical, time and knowledge constraint after certain point of time in
Ǥ ϐǡϐǤ
of the corporate and multi dimensional growth of CS profession especially in the areas of practicing in the areas
of Corporate Laws, Labour laws, RBI/ FEMA, acting as Secretarial Audit, Resolution Professional Insolvency
ǡ ϐǤ
ϐǡ ϐǤ
xiv
COMPANY LAW
1. Dr. Avtar Singh : Company Law; Eastern Book Company, 34, Lalbagh, Lucknow – 226 001
2. C.R. Datta : Datta on the Company Law; Lexis Nexis, Butterworths Wadhwa, Nagpur
͵Ǥ Ǥ ǣ Ǣǡǡ
ͶǤ ǤǤ ǡǤǤǡ ǣ Ǣ ǡ ͳȀͳǡ ǡ ǡ
ȂͳͶͳͲͲͳǤ
ͷǤ ǤǤǡǤ ǤǤ ǣ Ǣ ǡ ͷͻȀ͵ʹǡ ǡ
ǡ ǦͳͳͲͲͲͷǤ
Ǥ ǤǤ ǣ Ǣ Ǥ ǤǢ ǦͳȀͻͷǡ
Mangolpuri Industrial Area, Delhi-110083.
Ǥ Ǥ ǣ Ǣ ǡ ͳͷͳǡ
Rajinder Market, Opp. Tis Hazari Court, Delhi-110054.
ͺǤ ǤǤǤ ǣ ǢƬǤǡǤ
ͻǤ ǯ ǣ Ƭ ϐ Ǣ ǡ ͷͻȀ͵ʹǡ
Rohtak Road, New Delhi-110 005.
10. Bare Act : Corporate Laws; Taxmann, 59/32, New Rohtak Road,
New Delhi-110 005.
11. Video : Primer on Company Law by ICSI (https:/www.youtube.com/user
icsicompaniesact2013)
ǣ
1. Chartered Secretary : ICSI, New Delhi
2. Student Company : ICSI, New Delhi
Secretary
3. Corporate Law Adviser : Corporate Law Advisers, 613, Metro View Apt., Sector 13, Pocket B,
ǡǦͳͳͲͲͷǤ
4. Company Law Journal : Company Law Journal (India) Pvt. Ltd., 53/15, Old Rajinder Nagar, Post
Box No. 2844, New Delhi-110060.
ǣThe latest edition of all the books referred to above should be read.
xv
ARRANGEMENT OF STUDY LESSONS
ǦͳǦʹ
COMPANY LAW
ǤǤ
1 Introduction to Company Law
2 Share and Share Capital
3 Members and Shareholders
4 Debt Capital and Deposits
5 Charges
ϐȂ
8 Accounts, Audit and Auditors
9 Transparency and Disclosures
10 Ǧǡ ǡ ǡ
11 Registers and Records
12 An Overview of Corporate Reorganization
13 An Introduction to MCA 21 and Filing in XBRL
ͳͶ
xvi
CONTENTS
LESSON 1
INTRODUCTION TO COMPANY LAW
xvii
LESSON 2
SHARE AND SHARE CAPITAL
xviii
Reduction of Share Capital without Sanction of the Tribunal 93
ǣ ȃ ǡʹͲͳ͵ 94
Transfer or Transmission of Securities 94
Checklist for Company Secretary 98
Power of Board to Refuse Registration 100
ϐ ȋ ͷͻȌ ͳͲͳ
Lost Transfer Deeds 102
Delegation of Powers for Transfer 103
Transfer of Debentures 103
Transfer of Shares to a Minor 103
Transfer of Shares to Partnership Firm 103
Transfer of Securities to a Body Corporate 104
Transfer without the Authority of the Owner 104
Position of Transferor 104
Transfer in Violation of Articles 104
Transmission of Securities 104
Distinction between Transfer and Transmission 105
Forged Transfer 109
Death of a Joint Shareholder 110
Transposition of Name 110
Death of Transferor or Transferee before Registration of Transfer 110
Rights of Transferor 111
Effects of Transfer 112
Legal Framework for Depository Systems 113
Dematerialisation and Rematerialisation of Shares 114
ͳͳ
Procedure for Dematerialisation of Shares by the Company 118
Transfer of Dematerialised Shares 118
Pledge or Hypothecation of Dematerialised Shares 119
Rematerialisation of Securities 120
Annexure I 120
Annexure II 120
Annexure III 120
LESSON ROUND-UP 122
ͳʹ͵
TEST YOURSELF 124
125
OTHER REFERENCES 125
xix
͵
Ͷ
xx
Applicability 188
Acceptance of Deposits 189
The Companies (Acceptance of Deposits) Rules, 2014 192
Return of Deposits- Including Reports of 'What is not a Deposit' 199
Forms related to Deposits 201
Procedure of acceptance of Deposits-From Members and Public 201
Checklist of Secretarial Compliance for Acceptance of Deposits as per the Companies Act, 2013 205
Ǧ ʹͲ
ʹͲͺ
TEST YOURSELF 209
210
OTHER REFERENCES 210
ͷ
CHARGES
Introduction 213
Pledge, Hypothecation & Mortgage 213
ϐ ʹͳͶ
Meaning of Interest & Lien 214
Depature from the Company Act, 1956 214
Difference between Mortgage & Charge 214
Charge & Pledge Distinguished 215
Registrable Charges 215
Need for creating a Charge on Company’s Assets 216
ʹͳ
ʹͳ
ϐ ʹͳͺ
ϐ ʹͳͺ
ϐ ʹͳͻ
ϐ ʹͳͻ
ϐ ʹͳͻ
Registration of Charges under the Companies Act, 2013 220
Ȃ ȋͳȌ ʹʹͲ
Subsequent Registration shall not Prejudice any Right 222
Non-Applicability to certain charges as prescribed in Consultation 222
Application for registration of charge by the charge-holder (Financing Institution) 222
ϐ Ƭϐ ϐ ʹʹʹ
xxi
Acquiring Property subject to a charge 222
ϐ ʹʹ͵
ϐ ʹʹ͵
Satisfaction of charges 223
Power of registrar to make entries of satisfaction in absence of intimation from the company 224
ϐ ̳ ʹʹͶ
ǯϐ ʹʹͶ
Intimation of appointment of receiver or manager 225
Company’s Register of charges 225
Inspection of charges-Section 85(2) 226
ʹʹ
Consequences of Non-Registration of Charge 226
ʹʹ
ʹʹ
ϐ ʹʹͺ
Ȁϐ ʹʹͺ
Registration of charges under the SARFAESI Act, 2002 by Banking Company 230
Specimen Resolutions 233
LESSON ROUND UP 236
ʹ͵
ʹ͵
238
OTHER REFERENCES 238
Ȃ
Introduction 240
ϐ ʹͶͳ
Interest vs. Dividend 241
Types of Dividend 242
Declaration of Dividend (Section 123) 243
ȋ ͳʹͶȌ ʹͶ
Investor Education and Protection Fund (Section 125) 248
Utilisation of Investor Education and Protection Fund 249
Right to Dividend, Rights Shares and Bonus Shares to be held in Abeyance Pending
Registration of Transfer of Shares 258
Punishment for Failure to distribute Dividends 259
xxii
Waiver of Right to receive Dividend 259
Revocation of Dividend 259
ϐ ʹͷͻ
ϐ ʹͷͻ
Procedure for Declaration and Payment of Interim Dividend 260
Procedure for Declaration and Payment of Final Dividend 263
Procedure for Declaration of Dividend out of Reserves 266
Annexures 266
LESSON ROUND-UP 269
ʹͻ
ʹͲ
ʹͲ
OTHER REFERENCES ʹͲ
xxiii
The National CSR Awards 293
What are the Various other aspects that may be kept in mind while undertaking CSR? 293
ANNEXURES 295
LESSON ROUND-UP 303
͵ͲͶ
TEST YOURSELF 305
͵Ͳͷ
OTHER REFERENCES 305
LESSON 8
ǡ
Introduction 310
Important Terminologies w.r.t. Accounts of Companies 310
Ǥȋ ͳʹͺȌ ͵ͳͳ
Financial Statement (Section 129) 313
Form of Financial Statements (Schedule III) 314
Consolidated Financial Statements 314
Manner of Consolidation of Accounts 314
Periodical Financial Results 315
Re-Opening of Accounts on Court’s or Tribunal’s Orders (Section 130) 315
Voluntary Revision of Financial Statements or Board’s Report (Section 131) 316
Signature of Financial Statement (Section 134) 316
ȋ ͳ͵Ȍ ͵ͳ
Ǧȋ ͳ͵Ȍ ͵ͳͻ
National Financial Reporting Authority (NFRA) 320
Ǧȋ ͳ͵͵Ȍ ͵ʹʹ
Audit and Auditors 325
Ƭϐ ͵ʹͷ
ϐ ͵ʹͷ
Appointment of Auditors (Section 139) 326
͵ʹ
Mandatory Rotation of Auditors 328
Rotation of Auditors [Section 139(3)] 328
Rotation of Auditors on Expiry of their Term 328
Re-Appointment of Retiring Auditor [Section 139 (9)] 329
ϐ ȏ ͳ͵ͻȋͺȌȐ ͵ʹͻ
Appointment of Auditor other than Retiring Auditor by Special Notice 330
xxiv
Powers of Tribunal [Section 140(5)] 331
Removal of Auditor 331
Resignation of Auditor 331
Remuneration of Auditor (Section 142) 332
Auditor Not to Render Certain Services (Prohibited Services) [Section 144] 332
ǯ ͵͵ʹ
Powers and Duties of Auditors 332
Ȃ
ȏ ͳͶ͵ȋͷȌƬͳͶ͵ȋȌȐ ͵͵͵
Audit Report 334
Branch Audit 336
Auditing Standards [Section 143(9) & (10)] 336
Reporting of Frauds by Auditor 336
Ƭ ͵͵
Ƭȋ ͳͶͺȌ ͵͵
Cost Audit 339
Secretarial Audit 341
Role of Company Secretary 343
Need For Secretarial Audit 345
Internal Audit (Section 138) 346
Ǧ ͵Ͷ
͵Ͷͺ
TEST YOURSELF 349
349
OTHER REFERENCES 349
ͻ
TRANSPARENCY AND DISCLOSURES
Introduction 352
Disclosure by Board 352
Annual Report 352
Disclosure in Board’s Report Pursuant to the Companies Act, 2013 361
ǯ ͵ͷ
ǡǯǡ Ǥ ͵
ǯ ͵
ǯ ͵
͵ͻ
xxv
Website Disclosures 384
Policies 389
Annexures 394
LESSON ROUND-UP 402
ͶͲʹ
TEST YOURSELF 403
403
OTHER REFERENCES 403
ͳͲ
Ǧǡ ǡ
ǡ
Introduction 406
Loans and Investments by Companies (Section 186) 409
ǡ ǡ Ȃȏ ͳͺȋʹȌȐ ͶͳͲ
Meaning of the term Investment 410
ͶͳͲ
Non Applicability of Section 186 412
Investments to be held in Company’s Own Name 414
Register of Investments not held in Company’s own Name 415
Related Party Transactions 416
Role of Audit Committee in Related Party Transactions 424
LESSON ROUND-UP 431
Ͷ͵ͳ
TEST YOURSELF 432
433
OTHER REFERENCES 433
LESSON 11
REGISTERS AND RECORDS
xxvi
Ͷͷ
Ͷͷ
OTHER REFERENCES Ͷͷ
LESSON 12
AN OVERVIEW OF CORPORATE REORGANISATION
xxvii
ͳ͵
ʹͳ
xxviii
592
OTHER REFERENCES 592
ͳͶ
ͳͷ
Introduction 658
Board Composition 659
Board Committees 666
Audit Committee 668
ʹ
ͷ
Stakeholders Relationship Committee 680
Risk Management Committee 682
Corporate Social Responsibility Committee 684
Other Board Committee 686
Purpose Evaluation 686
ͺ
Ǧ ͺ
ͺ
xxix
TEST YOURSELF 688
688
OTHER REFERENCES 688
ͳ
DIRECTORS
Introduction 692
ϐ ȋDIN) 692
ϐ ȏͳʹ
ȋϐ ȌǡʹͲͳͶȐ ͻ
Cancellation/Surrender/Deactivation of DIN [Rule 11 of the Companies
ȋϐ ȌǡʹͲͳͶȐ ͻ
DIN ͻ
Ǧ͵Ȁ Ǧ͵ ͻͺ
Directors 698
First Director 698
Resident Director 699
Women Director 699
Director elected by Small Shareholders [Section 151] 699
Ͳͳ
Ͳͺ
Ͳͺ
Ͳͻ
ͳͲ
ͳͲ
ȀǦǡϐ ǡ ϐ ǡǡ ͳͲ
Ǧ ͳʹȋͳȌ ͳͲ
ȏ ͳͷȐ ͳͲ
ͳͳ
ͳʹ
ͳ͵
Ǧ ͳ͵
ȏ ͳͲȐ ͳͶ
ͳͶ
ͳͷ
Ǧ ͳ
xxx
ȏ ͳͷͲȐ ͳ
Enrollment in Data Bank of Independent Director [Rule 6 of the Companies (Appointment and
ϐ ȌǡʹͲͳͶȐ ͳ
Creation and Maintenance of Databank of Independent Directors [Rule 3 of the Companies
ȋ ȌǡʹͲͳͻȐ ͳͺ
ʹͳ
ʹͳ
ʹʹ
ʹʹ
ʹʹ
ʹʹ
ʹ͵
ʹ͵
ϐ ʹͶ
ʹͷ
ʹͷ
ʹͷ
ʹ
ϐ ʹ
ʹͺ
ȏ ͳȐ ʹͺ
ȋ ͳͺͷȌ ʹͻ
ͳͺͷ ͵Ͳ
͵Ͳ
͵ͳ
ȋ ͳͳȌ ͵ͳ
Declaration at the time of Commencement of Business [Section 10A r/w Rule 23A of the Companies
ȋ ȌǡʹͲͳͶ ͵ʹ
ϐ ͵ʹ
Ǧ ͵͵
͵͵
͵Ͷ
͵Ͷ
OTHER REFERENCES ͵Ͷ
xxxi
ͳ
APPOINTMENT AND REMUNERATION OF KEY MANAGERIAL PERSONNEL
LESSON 18
ͳͻ
GENERAL MEETINGS
Introduction 802
ȋ ͻȌ ͺͲ͵
ͺͲͶ
ǡ ͺͲͶ
ǣȏ ͳͲʹȐ ͺͲͷ
ȏ ͻͻȐ ͺͲͷ
Convening of a valid general meeting 806
Ǧ ȋ ͳͲͲȌ ͺͲ
Class Meetings 808
Types of Resolutions 809
Resolutions requiring Special Notice 809
ϐ ͺͳͳ
Notice of Meeting (Section 101) 813
Length of notice of meeting 813
Shorter notice 814
Contents of Notice 815
Place of meeting (section 96) 815
Day of meeting (Section 96) 815
Time of meeting (section 96(2)] 816
Agenda (section 102) 816
Proxy clause with reasonable prominence [section 105(2)] 816
Notice through Electronic Mode 816
xxxiii
ͺͳ
ǡƬ ϐ Ǧʹ ͺͳͺ
Statement to be annexed to Notice – Explanatory Statement (Section 102) 819
Quorum for Meetings (Section-103) 820
Adjourned Meetings 822
Resolution passed at adjourned meetings 823
Charmain of meeting (section 104) 823
Presence of Statutory Auditor and Secretarial Auditor 824
Proxies (Section 105) 824
Voting 828
Restriction on voting Rights (Section 106) 828
ȋ ͳͲȌ ͺʹͺ
Voting through electronic means (section 108) 828
Voluntary Applicability of Rule 20 (i.e. voting by electronic Means) 829
Procedure of E-Voting 830
Demand for Poll (Section 109) 833
Manner to get Poll process scrutinized 834
Postal Ballot (Section 110) 835
Business to be transacted through postal ballot: [Rule 22 of the Companies (Management and
Administration) rules, 2014] 835
Circulation of Members’ Resolution (Section 111) 840
Maintenance of Minutes of Meetings 840
Secretarial Standard on Minutes 841
ͺͶͶ
ǡ ͺͶͷ
Ǧ ͺͶ
ͺͶͺ
TEST YOURSELF 848
849
OTHER REFERENCES 849
ʹͲ
VIRTUAL MEETINGS
Introduction 852
Ȃϐ ͺͷʹ
Brief Requirements for Virtual Meeting 853
Virtual Board Meetings 854
The Attendance Registers 855
xxxiv
Venue of the meeting 856
Role of Chairperson and Company Secretary 856
Procedures for convening and conducting Board’s Meetings through Video or Audio Visual Means 856
ǡʹͲͳ͵ ͺͷͺ
Ȁ ͺͷͻ
Ȁ ͺͷͻ
ϐ ͺͷͻ
LESSON ROUND-UP 864
ͺͶ
TEST YOURSELF 864
865
OTHER REFERENCES 865
LESSON 21
LEGAL FRAMEWORK GOVERNING COMPANY SECRETARIES
Introduction 868
Some legal terminologies and interpretation 868
Associate and Fellows 868
ϐ ͺͻ
ͺͲ
ͺͲ
ͺͲ
ͺͲ
ͺͳ
ͺͳ
ͺʹ
ǡͳͻͺͲǯ ͺʹ
LESSON ROUND-UP 898
ͺͻͺ
TEST YOURSELF 898
899
OTHER REFERENCES 899
LESSON 22
Introduction 902
Functions of the Secretarial Standards Board 902
Need for Secretarial Standards 902
xxxv
Scope of Secretarial Standards 902
Process of making Secretarial Standards 902
Secretarial Standard on Meetings of the Board of Directors 904
ͻʹͷ
LESSON ROUND-UP 953
ͻͷ͵
TEST YOURSELF 953
954
OTHER REFERENCES 954
ʹ͵
MEGA FIRMS
Introduction 956
Adoption of Mode of Practice 956
ǡ ϐ ͻͷ
What is Multidisciplinary/Mega Firm? 958
ϐǫ ͻͷͻ
Pre-Requisites 959
ϐ ͻͷͻ
Risks 960
Process of Constitution 960
Agreement between partners 961
ϐ ͻͳ
Revenue sharing models 961
Conclusion 962
Annexure I 962
LESSON ROUND-UP 964
ͻͶ
TEST YOURSELF 964
964
OTHER REFERENCES 964
xxxvi
Lesson 1 Introduction to Company Law
Key Concepts One Learning Objectives Regulatory Framework
Should Know
To understand: The Companies Act, 2013
• Company
• The concept and legal • Section 1- Applicability of
• Corporate provisions of Company Law the Companies Act, 2013
Personality
• Background and evolution • Ǧʹϐ
• Limited Liability of corporate legislation in • Section 3-Formation of
• Small Company India Company
• One Person • Reading Methodology of the • Section 406- Nidhi
Company Companies Act, 2013 and Companies
its legal aura
• Holding & • Section 455- Dormant
Subsidiary • The distinct features of Company
Company Company
• Dormant • Other forms of business
Company • Key concepts under the
Companies Act, 2013
Lesson Outline
• Introduction-Jurisprudence of Company Law
• History and development of Company Law in India
• The Companies Act, 1956
• Concept Paper on Company Law, 2004 & JJ Irani Report
• ϐ
• Nature and characteristics of a Company
• Company vis-a vis other forms of business
• Doctrine of lifting of or piercing the corporate veil
• Applicability of the Companies Act, 2013 and Key Concepts
• ϐ
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
2 Lesson 1 • EP-CL
2002 Joshi The Committee was constituted under the Chairmanship of Shri R.D. Joshi to
Committee examine the remanants of the Companies Bill, 1997.
The Irani Committee was constituted under the chairmanship of Dr. J J Irani,
2005 Irani
Director, Tata Sons, with the task of advising the Government on the proposed
Committee
revisions to the Companies Act, 1956.
company; restrictions on the powers of managerial personnel; enforcement of proper performance of their duties
by company management; and protection of minority shareholders were some of the main features of the Companies
Act, 1956.
The Companies Act, 1956 was enacted with the object to amend and consolidate the law relating to companies. This
Act provided the legal framework for corporate entities in India and was a mammoth legislation. As the corporate
sector grew in numbers and size of operations, the need for streamlining this Act was felt and as many as 24
amendments had taken place since then.
The Companies Based on the recommendations of the Vivian Bose Commission, this introduced some
(Amendment) Act, ǡ ϐ
1965 in its Memorandum of Association; Strengthening the provisions relating to investigation
into the affairs of the company, etc. The Companies Act was further amended twice in 1966.
The Companies Two important changes were introduced through this. The institutions of managing
(Amendment) Act, agents and secretaries and treasurers were abolished with effect from April 3, 1970.
1969 Secondly, contributions by companies to any political party or for any political purpose
were prohibited.
The Companies This introduced some important and major changes in the Companies Act, 1956. The
(Amendment) Act, object of the Amendment Act was to inject an element of public interest in the working
1974 of the corporate sector.
The Companies This brought about certain changes in Sections 58A, 220, 293, 620 and 634A of 1956
(Amendment) Act, 1977 Act.
The Companies The amending Act substituted Section 293A of Companies Act, 1956 with a new section
(Amendment) Act, permitting Non-Government companies to make political contributions, directly or
1985 indirectly.
With a view that legitimate dues of workers rank with secured creditors in
the event of closure of the company and rank above even the dues to Government,
Sections 529 and 530 of the Companies Act, 1956, were amended and a new Section
529A was introduced.
The Companies Based on the recommendations made by the Expert Committee (Sachar Committee),
(Amendment) Act, the Companies (Amendment) Act, 1988 substantially amended the Companies Act,
1988 1956 in order to streamline some of the existing provisions of the Companies Act, 1956
and to ensure better working and administration of the Act. The important changes
introduced by the Amendment Act of 1988 were:
ȋȌ ϐ ϐǮ ǯ
the Company Secretaries Act, 1980 and includes an individual possessing the
ϐ Ǥ
ȋȌ ϐ
the Companies Act. The Amended Act, among other things, also set up an independent
Company Law Board to exercise such judicial and quasi-judicial functions, earlier
being exercised either by the Court or the Central Government.
6 Lesson 1 • EP-CL
The Depositories Act, Dematerialization of securities was introduced by the Depositories Act, 1996 and
1996 accordingly amendments were made to register of members and several other
consequential things were incorporated.
The Companies The following major changes to the Companies Act, 1956:-
(Amendment) Act,
1999 a) Companies allowed to issue Sweat Equity shares and to buy-back their own securities.
Ȍ ϐȀȀǤ
c) An Investor Education and Protection Fund to be established.
d) National Advisory Committee on Accounting Standards for companies to be
established.
e) Prior approval of Central Government not required for inter-corporate
Ȁ Ǥ
The Companies This inserted new Sections 610B, 610C, 610D and 610E and also certain sections
(Amendment) Act, ϐ ȋ ȌǤ
2006 ϐǡ ǡ
consistency with Information Technology Act, 2000.
• The Companies Act 1956 was enacted on the recommendations of the Bhaba Committee set up in 1950 with
the object to consolidate the existing corporate laws and to provide a new basis for corporate operation in
independent India. With enactment of this legislation in 1956, the Companies Act 1913 was repealed.
• The Companies Act, 1956, has since provided the legal framework for corporate entities in India. The need
for streamlining this Act was felt from time to time as the corporate sector grew in pace with the Indian
Lesson 1 • Introduction to Company Law 7
economy, with as many as 24 amendments taking place since 1956. Major amendments to the Act were made
through Companies (Amendment) Act, 1988 after considering the recommendations of the Sachar Committee,
ͳͻͻͺǡʹͲͲͲϐʹͲͲʹȋ Ȍ ʹͲͲʹǡ
consequent to the report of the Eradi Committee.
• Many countries faced with the task of economic restructuring in response to the realities of a changing
economic environment, have undertaken comprehensive revisions of their respective corporate laws. UK
Companies Act was revised during the 1980s. Subsequently, many countries whose legal systems were
derived from UK, such as Australia, New Zealand, Canada etc also undertook reviews of their corporate laws
and brought about several comprehensive reforms. It is widely accepted that reform and updation of the
basic legal framework for corporate entities is essential to enable sustainable economic reform.
• It was felt there is a requirement for simplifying corporate laws so that they are amenable to clear
interpretation and provide a framework that would facilitate faster economic growth. It also recognized that
the framework for regulation of corporate entities has to be in tune with the emerging economic scenario,
encourage good corporate governance and enable protection of the interests of the investors and other
stakeholders. In the competitive and technology driven business environment, while corporates require
greater autonomy of operation and opportunity for self-regulation with optimum compliance costs, there is
a need to bring about transparency through better disclosures and greater responsibility on the part of
corporate owners and managements for improved compliance.
Thus, to frame a law that enables companies to achieve global competitiveness in a fast changing economy, the
Government had taken up a fresh exercise for a comprehensive revision of the Companies Act, 1956, albeit through
Ǥϐ ǡ
format was exposed for public viewing on the electronic media so that all interested parties may not only express
their opinions on the concepts involved but may also suggest formulations on various aspects of Company Law.
The response to the concept paper on Company Law was tremendous. The Government, therefore, felt it appropriate
that the proposals contained in the Concept Paper and suggestions received thereon be put to merited evaluation
by an independent Expert Committee. A Committee was constituted on 2nd December, 2004 under the Chairmanship
of Dr. J J Irani, the then Director, Tata Sons, with the task of advising the Government on the proposed revisions to
ǡͳͻͷ ϐ
taking place in the national and international scenario, enable the adoption of internationally accepted best practices as
ϐǦ
changing business models. The Committee submitted its report to the Government on 31st May 2005.
Dr. J J Irani Expert Com ϐǡ
dynamic and user-friendly new company law. The Committee had taken a pragmatic approach keeping in view the
ground realities, and had sought to address the concerns of all the stakeholders to enable adoption of internationally
Ǥǡϐϐ
coupled with accountability and transparency. Be it the role of directors in the management of the company or the
role of promoters at the time of incorporation or the responsibility of professionals in ensuring better governance,
the report had made very dynamic and balanced recommendations. The Report of the Committee had also sought
ϐ
the “Government Approval Regime” to a “Shareholder Approval and Disclosure Regime”.
ϐ
freedom of operations and compliance at a low cost. Companies with higher public interest should be subject to a
stricter regime of Corporate Governance. Further, Government Companies and Public Financial Institutions should
be subject to similar parameters with respect to disclosures and Corporate Governance as other companies are
subjected to.
To attune the Indian Company Law with the global reforms taking place in the arena, the Report of the Committee
had sought to bring in multifarious visionary concepts, which if accepted and acted upon would really simplify the
voluminous and cumbersome Companies Act in the country.
8 Lesson 1 • EP-CL
Reading Methodology of the Companies Act, 2013 and its legal aura
The Companies Act, 2013 is not a standalone piece of legislation but a complete ecosystem. It contains Orders,
ǡ ϐ Ǥ ǡ ǡ ϐ
Circular.
Ǥϐ ϐ
under the powers derived from the Act itself.
Understanding the structure of Companies Act and the manner of identifying complementary legislations.
Statute law is the body of law contained in Acts of Parliament. The Companies Act, 2013 is principal legislation.
Schedules- It is appended to an Act, to form part of it. They are generally added to avoid encumbering the statutes
with matter of excessive details.
Delegated Legislations
Delegated legislation (subordinate legislation) is a legislation made under powers conferred by an Act of Parliament
(an enabling statute, of ten called the parent Act). Here Parent Act is The Companies Act and the delegated legislations
ϐǤȋ Ȍ
Rules 2014.
Rule, Regulation or By-Laws must not be Ǧ, that is to say, if a power exists by statute to make rules,
regulations, by laws, forms etc., that power must be exercised strictly in accordance with the provisions of the
statute which confers the power, for a rule, etc.,if Ǧ it will be held incapable of being enforced.
ǡ ϐǡ ȋͳȌ
ϐ ǢȋʹȌ
Ǥ ϐǡ
so framed would be void.
Lesson 1 • Introduction to Company Law 9
For example when you read sections relating to issue of capital you should read the sections with Companies (Share
Capital and Debentures) Rules, Companies (Prospectus and Allotment of Securities) Rules. Besides, other legislative
10 Lesson 1 • EP-CL
aspects including the provisions of SEBI Act, SEBI (ICDR) Regulations, SEBI (LODR) Regulations, provisions of
Depositories Act for dematerialization provisions and even the provisions of FEMA when the shares are issued to
non-residents, wherever applicable, are required to be read in collusion.
Breaking sections into parts and preparing notes for each section:
Company law is so wide that it cannot be easily remembered after only one reading. Students may make notes for
ǡ ǡ ϐǡ
Ǥǡ Ȁ
exceptions. This will help in understanding the background of the provisions, the spirit of law and would help in
remembering the provisions also. The exemptions provided for certain class of companies under Section 462 of
Companies Act are provided in the e-book at MCA portal under respective sections.
Students may break the sections at relevant places and giving emphasis on critical words and read for getting more
clarity.
ʹȋȌϐDz dz
breaks.
Dz dzǡ ǥǥǥǥȀǡ
ϐ ϐ ǥǥǥǤȀǡ
ϐ ǥǥǥȀǤ
includes a joint venture company.
Explanation.—For the purpose of this clause,—
ȋȌ Dzϐ ϐ dz ǡ
control of or participation in business decisions under an agreement;
(b) the expression “joint venture” means a joint arrangement whereby the parties that have joint control of the
arrangement have rights to the net assets of the arrangement;
ϐ ǡǮ
ǯǡǮϐ ϐ ǯϐn of subsidiary as mentioned in section 2(87).
Reforms brought under the Companies Act, 2013 for Ease of Doing Business
The enactment of the Companies Act, 2013 allowed India to have a modern legislation for growth and regulation of
corporate sector in India. The Act was enacted in light of the changing economic and business environment both
domestically and globally to facilitate business-friendly corporate regulations, improve corporate governance
norms, enhances accountability on the part of corporates and auditors, raise levels of transparency and protect
interests of investors, particularly small investors. The objective of the Companies Act, 2013 is to provide business
ȀǦǢǦ Ǣ
CSR; enhanced disclosure norms; enhanced accountability of management; stricter enforcement of laws; audit
accountability; Protection for minority shareholders; Investor protection and Shareholder activism; Robust
framework for insolvency regulation; and Institutional structure. Initially, it seems that changes in the Companies
ǡʹͲͳ͵ϐ Ǥ ǡ
ϐ
ϐ
the term “Ease of Doing Business” was popularised in India. On Ease of Doing Business front, the Government of
ǡǡϐ ǡǡ
Regulations etc. covering various business related issues and processes and also extends support to facilitate ease
of doing business. In the series the Companies Act, 2013 has also been amended to extend relief to the business
entities governed under the Companies Act, 2013. The object and rationale for such amendments are discussed
below:
The Companies (Amendment) Act, 2015 was enacted after it received the President’s assent on 25th May 2015.
During the consideration of the Companies (Amendment) Act, 2015 in the Rajya Sabha, views were expressed that
more amendments would be required; accordingly, the Government has constituted a Companies Law Committee
on 4th June, 2015. The terms of references of the Committee are:
(i) to make recommendations to the Government on issues arising from the implementation of the Companies
Act, 2013; and
(ii) to examine the recommendations received from the Bankruptcy Law Reforms Committee, the High Level
Committee on CSR, the Law Commission and other agencies, while undertaking (i) above. The report of the
CLC was submitted to the Government on the 1st February, 2016 and the Companies (Amendment) Bill, 2016
introduced in Lok Sabha on 16 March, 2016 is based on the recommendations of the Companies Law
Committee after taking into account the comments received on the report. The amendments proposed,
inter-aliaǡ ϐǢϐ
and running a company by simplifying Memorandum of Association and doing away with Central Government
approvals, etc.; easing raising of capital, procedures; rationalizing penal provisions related to auditors,
reconciling the competing objectives of improving corporate governance, incentivising individuals to take up
positions of responsibility in boards and reducing compliance cost. The report have also recommended some
changes to remove ambiguities in the CSR provisions based on the recommendations of the High Level
Committee on CSR.
The Companies (Amendment) Bill 2016, was referred to the Standing Committee on Finance on 12th April 2016 for
examination and report thereon. The Standing Committee on Finance Committee submitted it’s report on 07,
December, 2016, which was further placed before the Lok Sabha on 27th July, 2017 and Passed in Rajya Sabha on
19th December, 2017.
The subsequent amendments in Companies Act, 2013 was made through the Companies (Amendment) Act, 2017
which was expected to ensure better corporate governance and improve the ease of doing business by simplify
procedures, making compliance easier and taking stringent action against defaulting companies, strengthen
ǡ ϐ
implementation of the Companies Act, 2013.
Committee on review of Offences under the Companies Act, 2013 & the Companies (Ordinance), 2018
In order to review the framework dealing with offences under the Companies Act, 2013 and related matters and to
make recommendations to promote better corporate compliance, the Government of India has constituted a
Committee on review of Offences under Companies Act, 2013 in July, 2018 and the said Committee, submitted its
report in August, 2018.
The Committee recommended that the existing rigour of the law should continue for serious offences, whereas the
lapses that are essentially technical or procedural in nature may be shifted to in-house adjudication process. The
Committee observed that this would serve the twin purposes of promoting of ease of doing business and better
Ǥ ϐ
turn facilitate speedier disposal of serious offences and the offenders shall be penalised.
The liability under section 447 which deals with corporate fraud would continue to apply wherever fraud is noticed.
ϐ
ǡ ǡ ϐ ǡ
ϐ ϐ
independent director.
Lesson 1 • Introduction to Company Law 13
After the submission of the Report, the immediate relief were expected by the Corporate and Stake holders, However,
at that time the parliament was not in session, to provides the immediate relief, the Ordinance in need to be issued
by the Government of India, accordingly the Companies (Amendment) Ordinance, 2018 was promulgated by the
President on the 2nd day of November, 2018.
In order to give continued effect to the Companies (Amendment) Ordinance, 2018, the President promulgated the
Companies (Amendment) Ordinance, 2019 and the Companies (Amendment) Second Ordinance, 2019 on the 12th
day of January, 2019 and the 21st day of February, 2019 respectively. With the constitution of new assembly, The
Companies (Amendment) Bill, 2019 was introduced in Lok Sabha on July 25, 2019, to replace the Companies
(Amendment) Second Ordinance, 2019 with certain other amendments which are considered necessary to ensure
more accountability and better enforcement to strengthen the corporate governance norms and compliance
management in corporate sector. The Companies (Amendment) Bill, 2019 passed in Lok Sabha on 26th July, 2019
and on 30th July, 2019 in the Rajya Sabha.
The Companies (Amendment) Act, 2019 received the President assent on 31st July, 2019 and replaced the Companies
(Amendment) Second Ordinance, 2019. It provided certain additional amendments, inter-alia, for the Ease of Doing
Business, including:
i. Amendment in clause (41) of section 2 of the Companies Act, 2013 so as to empower the Central Government
ϐ Ǣ
ii. Amendment in sixteen sections of the Act so as to modify the punishment as provided in the said sections
ϐ Ǣ
iii. Amendment in section 135 of the Act so as to bring clarity to –
(a) carry forward the unspent corporate social responsibility amount, to a special account to be spent
ϐ ϐ ǡ
ongoing project; and
ȋȌ ϐ ǡ Ǣ
iv. Amendment in section 441 of the Act so as to enhance the jurisdiction of the Regional Director for compounding
the offences.
In view of constant effort of Government of India to facilitate ease of doing business in India to the corporates, a
Company Law Committee (CLC) consisting of representatives from Ministry of Corporate Affairs, industry chambers,
professional institutes and legal fraternity was constituted on the September 18, 2019 headed by Mr. Injeti Srinivas
(Secretary of MCA), to give recommendations to decriminalize some more provisions of the Companies Act, 2013
and facilitate ease of living related changes.
Company Law Committee submitted its report on November 14, 2019. On the basis of this report, the Finance
Ministry has proposed some major amendments in the Companies Act, 2013 under the Companies Amendment Bill,
2020 which was introduced in Lok Sabha on March 17, 2020. Later it was passed by the Lok Sabha on September
19, 2020 and by the Rajya Sabha on September 22, 2020. Finally on September 28, 2020, the Companies (Amendment)
Act, 2020 received the assent of Hon’ble President of India.
Based on the recommendations of the CLC and internal review by the Government, the government has amended
various provisions of the Act to decriminalise minor procedural or technical lapses under the provisions of the
said Act, into civil wrong; and considering the overall pendency of the courts, a principle based approach was
adopted to further remove criminality in case of defaults, which can be determined objectively and which
otherwise lack any element of fraud or do not involve larger public interest. In addition, the Government also
proposes to provide greater ease of living to corporates through certain other amendments to the Companies
Act, 2013.
14 Lesson 1 • EP-CL
ǧʹͳ
ϐ ȋ Ȍ- The Government in the backdrop of major failure of non-banking
ϐ ǡ ǡ
ϐ ȋ ȌǡǦ
corporate frauds. The Organization has been established and it has started functioning since 1st October, 2003.
Ǧ ϐ ǡ
auditing, law, information technology, investigation, company law, capital market and taxation for detecting and
ȀǤ
The National Financial Reporting Authority (NFRA) was constituted on 01st October, 2018 by the Government
of India under Sub Section (1) of section 132 of the Companies Act, 2013.
As per Sub Section (2) of Section 132 of the Companies Act, 2013, the duties of the NFRA are to:
• Recommend accounting and auditing policies and standards to be adopted by companies for approval by the
Central Government;
• Monitor and enforce compliance with accounting standards and auditing standards;
• Oversee the quality of service of the professions associated with ensuring compliance with such standards
and suggest measures for improvement in the quality of service;
• Perform such other functions and duties as may be necessary or incidental to the aforesaid functions and duties.
Sub Rule (1) of Rule 4 of the NFRA Rules, 2018 , provides that the Authority shall protect the public interest and the
interests of investors, creditors and others associated with the companies or bodies corporate governed under Rule
3 by establishing high quality standards of accounting and auditing and exercising effective oversight of accounting
functions performed by the companies and bodies corporate and auditing functions performed by auditors.
National Company Law Tribunal/National Company Law Appellate Tribunal (NCLT/NCLAT) - The setting up
of the NCLT and NCLAT are part of the efforts to move to a regime of faster resolution of corporate disputes, thus
ǤȋȌͳ ǡʹͲͳϐ
Constitution of National Company Law Tribunal (NCLT) & The National Company Law Appellate Tribunal (NCLAT)
in exercise of powers conferred under section 408 and 410 of the Companies Act, 2013.
The constitution of NCLT & NCLAT was a step towards improving and easing all the judicial matters relating to the
Company law under one roof.
Case Law:
ǤǤǤǡȋͷ;ͿͽȌǤǤ
The above case has clearly established the principle that once a company has been validly constituted
under the Companies Act, it becomes a legal person distinct from its members and for this purpose it is
immaterial whether any member holds a large or small proportion of the shares, and whether he holds
ϐ Ǥ
In the case, Salomon had, for some years, carried on a prosperous business as a leather merchant and
boot manufacturer. He formed a limited company consisting of himself, his wife, his daughter and his four
sons as the shareholders, all of whom subscribed to 1 share each so that the actual cash paid as capital
Lesson 1 • Introduction to Company Law 17
was £7. Salomon sold his business (which was perfectly solvent at that time), to the Company formed by
him for the sum of £38,782. The company’s nominal capital was £40,000 in £1 shares. In part payment of
the purchase money for the business sold to the company, debentures of the amount of £10,000 secured
ϐ ǯǡ
an allotment of 20,000 £ 1 fully paid shares. The remaining amount of £8,782 was paid to Salomon in
cash. Salomon was the managing director and two of his sons were other directors.
The company soon ran ϐ
company went into liquidation. The total assets of the company amounted to £6050, its liabilities
were £10,000 secured by debentures, £8,000 owing to unsecured trade creditors, who claimed the
ǯǡǤǡ͉ǡͲͷͲǡǡ Ǯǯ
agent for Salomon, they were entitled to payment of their debts in priority to debentures. They
further pleaded that Salomon, as a principal beneficiary, was ultimately responsible for the debts
incurred by his agent or trustee on his behalf.
ǣ
Dzǥ Ǣ
ǡ
ǡ ǡ ǡǡǤ
ǡ ǡ
ǡ
Ǥ
ǡ
ǡǡ
Ǥdz
Case Law:
Ǥǯ ǤȋͷͿͼͷȌǤǤͷȋǤǤȌ
The above case illustrates the application of the principles established in Salomon’s case (supra). In this
ǡ ǦǤǡϐǡ
of the shares in the company. He voted himself the managing director and got himself appointed by the
articles as chief pilot at a salary. He was killed in an air crash while working for the company. His widow
claimed compensation for the death of her husband in the course of his employment. The company
opposed the claim on the ground that Lee was not a worker as the same person could not be the employer
and the employee. The Privy Council held that Lee and his company were distinct legal persons which had
entered into contractual relationships under which he became the chief pilot, a servant of the company.
In his capacity of managing director he could, on behalf of the company, give himself orders in his other
capacity of pilot, and the relationship between himself, as pilot and the company, was that of servant and
master. Lee was a separate person from the company he formed and his widow was held entitled to get
the compensation. In effect the magic of corporate personality enabled him (Lee) to be the master and
servant at the same time and enjoy the advantages of both.
The decision of the Calcutta High Court in ǤǤǤǡȋͷ;;ͼȌ ͷǤͺǡ recognised the
principle of separate legal entity even much earlier than the decision in ǤƬǤǤ
case. Certain persons transferred a Tea Estate to a company and claimed exemptions from ad valorem
duty on the ground that since they themselves were also the shareholders in the company, it was nothing
but a transfer from them in one name to themselves under another name. While rejecting this Calcutta
High Court observed:
Dz ǡ
ǡ ǡ
persons.”
18 Lesson 1 • EP-CL
Case Law:
ǤǤ ǡȋ ͷͿͿͺǡͷͼȌ
The experience of a shareholder of a company can be regarded as experience of a company. The tender of
the company, New Horizons Ltd., for publication of telephone directory was not accepted by the Tender
Evaluation Committee on the ground that the company had nothing on record to show that it had the
technical experience required to be possessed to qualify for tender. On appeal the rejection of tender was
upheld by the Delhi High Court.
The judgment of the Delhi High Court was reversed by the Supreme Court which observed as under:
“Once it is held that NHL (New Horizons Ltd.) is a joint venture, as claimed by it in the tender, the
experience of its various constituents namely, TPI (Thomson Press India Ltd.), LMI (Living Media India
Ltd.) and WML (World Media Ltd.) as well as IIPL (Integrated Information Pvt. Ltd.) had to be taken into
consideration, if the Tender Evaluation Committee had adopted the approach of a prudent business man.”
“Seeing through the veil covering the face of NHL, it will be found that as a result of re-organisation in
1992 the company is functioning as a joint venture wherein the Indian group (TPI, LMI and WML) and Mr.
Aroon Purie hold 60% shares and the Singapore based company (IIPL) holds 40% shares. Both the groups
have contributed towards the resources of the joint venture in the form of machines, equipment and
ϐǤ
and Singapore based company who have jointly undertaken this commercial enterprise wherein they will
contribute to the assets and share the risk. In respect of such a joint venture company, the experience of
the company can only mean the experience of the constituents of the joint venture i.e. the Indian group of
companies (TPI, LMI and WML) and the Singapore based company (IIPL) ȋ Ǥ
Ǥ ȋͷͿͿͻȌͷǤ ͷͶͶȌǤ
Case Law:
Ǥ ȏȋͶͶͷȌͺͿͼȐ
In this case, the question which arose before the Court was whether a company is entitled to sue as an
indigent (poor) person under Order 33, Rule 1 of the Civil Procedure Code, 1908. The aforesaid Order
ϐȀ
cost of litigation.
The appellant in this case had objected to the contention of the company which had sought permission to
sue as an indigent person. The point of contention was that, the appellant being a public limited company,
Ǯǯ͵͵ǡͳǮǯ
Ǥ Ǯǯ
mentioned in Order 33, Rule 1 of the Civil Procedure Code, 1908, included any company as association or
ǡ ǤǮǯ
given its meaning in the context in which it was used and being a benevolent provision, it was to be given
Ǥ ϐǤ
that the State Trading Corporation though a legal person, was not a citizen and can act only through
natural persons. Nevertheless, it is to be noted that certain fundamental rights enshrined in the
Constitution for protection of “person”, e.g., right to equality (Article 14) etc. are also available to
company. Section 2(f ) of Citizenship Act, 1955 expressly excludes a company or association or body of
individuals from citizenship.
Case Law:
ǤǤǤ ǡ ͷͿͽͶͻͼͺ
In this case, the Supreme Court held that where the legislative measures directly touch the company of
which the petitioner is a shareholder, he can petition on behalf of the company, if by the impugned action,
his rights are also infringed. In that case, the court entertained the petition under Article 32 of the
Constitution at the instance of a director as shareholder of a company and granted relief. It is, therefore,
to be noted that an individual’s right is not lost by reason of the fact that he is a shareholder of the
company.
Case Law:
ǤǤ ǡ ͷͿͽͷͶͼ
Case Law:
ǤǤǡȋͷͿͶȌ ǤǤǤͽǤͷͻǡǤǤ
“A joint stock company resides where its place of incorporation is, where the meetings of the whole
company or those who represent it are held and where its governing body meets in bodily presence for
the purposes of the company and exercises the powers conferred upon it by statute and by the Articles of
Association.”
liable to pay the balance, if any, due on the shares held by him, when called upon to pay and nothing more,
even if the liabilities of the company far exceed its assets. This means that the liability of a member is limited.
ǡͳǡͲͲͲǤͷͲͲȀǦȋͷͲΨ
Ȍǡ ǤͷͲͲȀǦǡ
amount remaining unpaid on his shares. If he holds fully-paid shares, he has no further liability to pay even if
the company is declared insolvent. In the case of a company limited by guarantee, the liability of members is
ϐǤ
Buckley, J. Ǥ ǡȋͷͿͶȌͷǤǤͽ;ͽͷ, has observed: “The statutes
ϐ
commercial prosperity of the country. They have, to the advantage of the investor as well as of the public,
allowed and encouraged aggregation of small sums into large capitals which have been employed in
undertakings of “great public utility largely increasing the wealth of the country”.
appropriate orders with regard to disgorgement of such asset, property, or cash, and also for holding such
director, key manageriaǡϐ Ǥ
(vi) Perpetual Succession
An incorporated company never dies, except when it is wound up as per law. A company, being a separate
legal person is unaffected by death or departure of any member and it remains the same entity, despite total
change in the membership. Perpetual succession, means that the membership of a company may keep
changing from time to time, but that shall not affect its continuity.
Ȁ
transferred his shares to another or his shares devolve on his legal representatives on his death or he ceases
to be a member under some other provisions of the Companies Act. Thus, perpetual succession denotes the
ability of a company to maintain its existence by the succession of new individuals who step into the shoes of
those who cease to be members of the company. Professor L.C.B. Gower rightly mentions, Dz
ǡ Ǥ ǡ
ǡǡ Ȅ
destroyed it”.
(vii) Separate Property
A company being a legal person and entirely distinct from its members, is capable of owning, enjoying and
disposing of property in its own name. The company is the real person in which all its property is vested,
and by which it is controlled, managed and disposed off. Their Lordships of the Madras High Court in
Ǥ ǤǤ Ǥ ǡA.I.R. 1960 Mad. 43 held that Dz
ǯ ǦdzǤ A member does not even have an
insurable interest in the property of the company.
Case Law:
Ǥ Ǥ Ǥ ǡǡǤ ǤǤͷͿͻͻǤǤͽͺ
The Supreme Court in this case held that, though the income of a tea company is entitled to be exempted
from Income-tax up to 60% being partly agricultural, the same income when received by a shareholder in
the form of dividend cannot be regarded as agricultural income for the assessment of income-tax. It was
also observed by the Supreme Court that a shareholder does not, as is erroneously believed by some
people, become the part owner of the company or its property; he is only given certain rights by law, e.g.,
to receive notice of or to attend or vote at the meetings of the shareholders. The court refused to identify
the shareholders with the company and reiterated the distinct personality of the company.
Further, as of now, in most of the listed companies, the shares are also transferable through Electronic mode
i.e. through Depository Participants in dematerialised form instead of physical transfers.
However there are restrictions with respect to transferability of shares of a Private Limited Company. Even if
share of a Private Limited Company is in demat form, restrictions by the Articles of the company shall apply.
(ix) Capacity to Sue and Be Sued
A company being a body corporate, can sue and be sued in its own name. To sue, means to institute legal
proceedings against (a person) or to bring a suit in a court of law. All legal proceedings against the company
are to be instituted in its name. Similarly, the company may bring an action against anyone in its own name.
A company’s right to sue arises when some loss is caused to the company, i.e. to the property or the personality
of the company. Hence, the company is entitled to sue for damages in libel or slander as the case may be
ȏ ǤǤ (2004) 52 SCL 762 (Guj)]. A company, as a person distinct
from its members, may even sue one of its own members.
A company has a right to seek damages where a defamatory material published about it, affects its business.
Where video cassettes were prepared by the workmen of a company showing, their struggle against the
company’s management, it was held to be not actionable unless shown that the contents of the cassette
would be defamatory. The court did not restrain the exhibition of the cassette. ȏ Ǥ
ǤǡȋͷͿͿͼȌ;ͽͽȐǤ ϐ Ǥ
ȏǤϔ ȋȌǤǡȋͶͶͼȌͷͿͷͿȐ.
(x) Contractual Rights
A company, being a legal entity different from its members, can enter into contracts for the conduct of the
business in its own name. A shareholder cannot enforce a contract made by his company; he is neither a party
ǡϐǡ Ǥ
Likewise, a shareholder cannot be sued on contracts made by his company. The distinction between a
ϐ Ǥ
Thus, if a director fails to disclose a breach of his duties towards his company, and in consequence a
shareholder is induced to enter into a contract with the director on behalf of the company which he would
not have entered into had there been disclosure, the shareholder cannot rescind the contract.
Similarly, a member of a company cannot sue in respect of torts committed against the company, nor can he
be sued for torts committed by the company. Therefore, the company as a legal person can take action to
enforce its legal rights or be sued for breach of its legal duties. Its rights and duties are distinct from those of
its constituent members.
(xi) Limitation of Action
A company cannot go beyond the power stated in its Memorandum of Association. The Memorandum of
ϐ
ϐ Ǥ
limited within the scope of its Memorandum of Association. In order to enable it to carry out its actions
ǡϐ
Association. But once the powers have been laid down, it cannot go beyond such powers unless the
Memorandum of Association, itself altered prior to doing so.
(xii) Separate Management
ǡ ϐ
company. They do not have effective and intimate control over its working and they elect their representatives
as Directors on the Board of Directors of the company to conduct corporate functions through managerial
personnel employed by them. In other words, the company is administered and managed by its managerial
personnel.
Lesson 1 • Introduction to Company Law 23
ϐ A company is a distinct legal person.
persons who form the partnership.
ǡϐ In a company, it belongs to the company and not to the
of the individuals comprising it. individuals who are its members.
ϐ The creditors of a company can proceed only against
ϐ the company and not against its members.
executed against the partners jointly and severally.
ϐǤ Members of a company are not its agents. A member of
dispose of the property and incur liabilities as long as a company cannot dispose of the property and incur
ϐǯǤ liabilities in the course of the company’s business.
ϐǤ A member can contract with his company.
A partner cannot transfer his share and make the A company’s share can ordinarily be transferred
ϐ
the other partners.
A partner’s liability is always unlimited. The liability of shareholder may be limited either by
shares or a guarantee.
ϐǡ A company has perpetual succession, i.e. the death or
unless otherwise provided. insolvency of a shareholder or all of them does not
affect the life of the company.
ϐ A company is required to have its accounts audited
the partners. annually by a chartered accountant.
ϐǡǡ A company, being a creation of law, can only be dissolved
agreement and can be dissolved at any time by as laid down by law.
agreement among the partners.
24 Lesson 1 • EP-CL
The corporate veil is lifted when in defence proceedings, such as for the evasion of tax, an entity relies on its
corporate personality as a shield to cover its wrong doings. ȏȋȌǤǤ ȏͷͿͿͼȐ
;ͼͽͷȋȌǤȐ
However, the shareholders cannot ask for the lifting of the veil for their purposes. This was held in Premlata Bhatia
Ǥ ȋͶͶͺȌͻ;ͷͽȋȌwherein the premises of a shop were allotted on a licence to the individual
licencee. She set up a wholly owned private company and transferred the premises to that company without
Government consent. She could not remove the illegality by saying that she and her company were virtually the
same person.
Case Law:
ǤǡȋͷͿͼȌ ǤǤǤǤ;
A agreed to sell certain land to B. Pending completion of formalities of the said deal, A sold and transferred
the land to a company which he had incorporated with a nominal capital of £100 and of which he and a
Ǥ ϐ
performance in a suit brought by B. The Court held that the company was the creature of A and a mask to
avoid recognition and that in the eyes of equity A must complete the contract, since he had the full control
of the limited company in which the property was vested, and was in a position to cause the contract in
ϐǤ
Case Law:
ǤǤ Ǥ ǤȋͷͿͻȌͷǤǤͼͷͻ
ȋ Ȍ ϐ ǡ
public policy.
Case Law:
ǤǤȋͷͿͺͶȌͺǤǤͷͽͿ
The principle was applied against the managing director who made use of his position contrary to public
policy. In this case the House of Lords determined the character of the company as “enemy” company,
since the persons who were de facto in control of its affairs, were residents of Germany, which was at
war with England at that time. The alien company was not allowed to proceed with the action, as that
would have meant giving money to the enemy, which was considered as monstrous and against
“public policy”.
(d) Further, In Daimler Co. Ltd. v. Continental Tyre & Rubber Co., (1916) 2 A.C. 307, it was held that a
company will be regarded as having enemy character, if the persons having de facto control of its
affairs are resident in an enemy country or, wherever they may be, are acting under instructions from
or on behalf of the enemy.
(e) Where it was found that the sole purpose for which the company was formed was to evade taxes the
Court will ignore the concept of separate entity and make the individuals concerned liable to pay the
taxes which they would have paid but for the formation of the company.
Case Law:
Ǥ ǡǤ ǤǤͷͿͽͽͷ
The facts of the case are that the assessee was a wealthy man enjoying large dividend and interest income.
He formed four private companies and agreed with each to hold a block of investment as an agent for it.
Income received was credited in the accounts of the company but the company handed back the amount
to him as a pretended loan. This way he divided his income in four parts in a bid to reduce his tax liability.
But it was held “the company was formed by the assessee purely and simply as a means of avoiding super-
tax and the company was nothing more than the assessee himself. It did no business, but was created
simply as a legal entity to ostensibly receive the dividends and interests and to hand them over to the
assessee as pretended loans”. The Court decided to disregard the corporate entity as it was being used for
tax evasion.
Vodafone case
One of the landmark case of the Supreme Court, is its decision in the case of
ǤǤǤ ƬȏǤǤǤȋȌ No. 26529 of 2010].In judgment, the Supreme Court set
aside the Bombay High Court’s judgment directing Vodafone International Holdings BV (“Vodafone”), to
pay INR 110 billion, as withholding tax in a transaction that took place off-shore.
ǡϐǡʹͲͲǡǡ ǡ
Hong Kong based Hutchison Group, the entire share capital of CGP Investments (Holdings) Limited
(“CGP”), a company incorporated in the Cayman Islands, which in turn controlled a 67% interest in
Hutchison-Essar Limited (“HEL”), Hutchison’s Indian mobile business. The Indian income tax authorities
contended that capital gains were made by Hutchison in India and that Vodafone was therefore liable to pay
withholding tax thereon, amounting to approximately INR 110 billion (the sale price being USD 11.2 billion).
Vodafone challenged the tax demand in the Bombay High Court, which ruled in favour of the income tax
authorities, holding that the essence of the transaction was a change in the controlling interest in HEL, which
constituted a source of income in India. Vodafone appealed to the Supreme Court, which overruled the High
Court and held that the transaction fell outside India’s territorial tax jurisdiction and was hence not taxable.
Lesson 1 • Introduction to Company Law 27
The judgment was not only important in the context of taxation, but also covers other issues of corporate
law. One of these are in the context of the principle of the corporate veil, and the circumstances under
which it may be lifted, particularly in the context of commercial cross-border transactions and tax
avoidance.
The Court recognised the fundamental principle of the corporate veil by noting that, “The approach of
both the corporate and tax laws, particularly in the matter of corporate taxation, generally is founded on
the abovementioned separate entity principle, i.e., treat a company as a separate person. The Indian
Income Tax Act, 1961, in the matter of corporate taxation, is founded on the principle of the independence
ǦǤdz Ȁ
relationships, that it is generally accepted that the group parent company would give guidance to group
subsidiaries, but that by itself would not justify piercing the veil or imply that the subsidiaries are to be
deemed residents of the State in which the parent company resides, and that “a subsidiary and its parent
are totally distinct tax payers”.
Six factors that may be considered to determine whether the transaction is a bogus and whether in a
ϐ ǡ ǡǣDzȋȌ ǡȋȌ
duration of time during which the Holding Structure exists; (iii) the period of business operations in
India; (iv) the generation of taxable revenues in India; (v) the timing of the exit; and (vi) the continuity of
business on such exit.”
ϐǡ ǡ
authorities failed to establish that the transaction was a bogus or tax avoidance scheme.
(f) Avoidance of welfare legislation is as common as avoidance of taxation and the approach in considering
problems arising out of such avoidance has necessarily to be the same and, therefore, where it was
found that the sole purpose for the formation of the new company was to use it as a device to reduce
the amount to be paid by way of bonus to workmen, the Supreme Court upheld the piercing of the veil
to look at the real transaction.
Case Law:
ǡ Ǥ
ǤǡǡǤ ǤǤͷͿ;ͼͷǤ
The facts of the case were that a new company was created wholly by the principal company with no
assets of its own except those transferred to it by the principal company, with no business or income of
its own except receiving dividends from shares transferred to it by the principal company i.e. only for the
ϐ Ǥ
ϐ
the principal company and thereby reduce the amount to be paid by way of bonus to workmen. The
amount of dividends received by the new company should, therefore, be taken into account in assessing
ϐ Ǥ
(g) Another instance of corporate veil arrived at by the Court arose in Kapila Hingorani v. State of Bihar.
Case Law:
ǤǡͶͶȋͺȌ ͽͷ
In this case, the petitioner had alleged that the State of Bihar had not paid salaries to its employees in
PSUs etc. for long periods resulting in starvation deaths. But the respondent took the stand that most of
the undertakings were incorporated under the provisions of the Companies Act, 1956, hence the rights
etc. of the shareholders should be governed by the provisions of the Companies Act and the liabilities of
28 Lesson 1 • EP-CL
the PSUs should not be passed on to the State Government by resorting to the doctrine of lifting the
corporate veil. The Court observed that the State may not be liable in relation to the day-to-day functioning
of the PSUs but its liability would arise on its failure to perform the constitutional duties and the functions
of these undertakings. It is so because, “life means something more than mere ordinal existence. The
inhibition against deprivation of life extends to all those limits and faculties by which life is enjoyed”.
(e) any other company governed by any special Act for the time being in force, except in so far as the said
provisions are inconsistent with the provisions of such special Act; and
(f) such body corporate, incorporated by any Act for the time being in force, as the Central Government
ǡϐ ǡ ǡ ǡϐ ǡ
ϐϐ Ǥ
Companies Act, 2013 is not applicable to unincorporated companies.
ͶͶ ǡʹͲͳ͵ȀͳͲȋ ȌǡʹͲͳͶǡ
association or partnership consisting of more than 50 persons shall be formed for the purpose of carrying on any
business that has for its object the acquisition of gain by the association or partnership or by the individual members
thereof, unless it is registered as a company under this Act or is formed under any other law for the time being in
force. The maximum number of persons which may be prescribed under this section shall not exceed 100.
Section 464 of the Act does not apply to –
(1) In the case of a Hindu undivided family carrying on any business whatever may be the number of its members.
(2) In case of an association or partnership, if it is formed by professionals who are governed by special Acts.
Every member of an association or partnership carrying on business in contravention of sub-section (1) of Section
ͶͶϐ
liabilities incurred in such business.
ϐ ǡʹͲͳ͵
ϐǤ
ǡϐ ȋ Ǯ ǯȌ ϐ
various words and phrases used in the statute (e.g. Section 2 of the Companies Act, 2013).
ϐǣ
• ϔǣ ϐǡ Ǥ
• ϔǣAn exact statement or description of the nature, scope, or meaning of something (Oxford dictionary)
• ǣϐ
the Statute.
• ϔǣǦǦ ϐ
ϐ
ϐ ǡʹͲͳ͵
• “Director” means a director appointed to the Board of a company;
• “Employees’ stock option” ǡϐ
ǡǡ ǡϐ
ǡϐ ǡ ǡ
date at a pre-determined price;
• “Charge” means an interest or lien created on the property or assets of a company or any of its undertakings
or both as security and includes a mortgage;
• “Body Corporate or Corporation” includes a company incorporated outside India, but does not include:
(i) a co-operative society registered under any law relating to co-operative societies; and
ȋȌ ȋ ϐ Ȍǡ
ǡϐ ǡ Ǣ
• “Book and paper” include books of account, deeds, vouchers, writings, documents, minutes and registers
maintained on paper or in electronic form;
• “Deposit” includes any receipt of money by way of deposit or loan or in any other form by a company, but does
not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India;
‘Explanations’ in Statutes:
• Clause (87) “Subsidiary Company” or “Subsidiary”, in relation to any other company (that is to say the
holding company), means a company in which the holding company –
(i) controls the composition of the Board of Directors; or
(ii) exercises or controls more than one-half of the total voting power either at its own or together with one or
more of its subsidiary companies:
Provided that such class or classes of holding companies as may be prescribed shall not have layers of
subsidiaries beyond such numbers as may be prescribed.
Explanation.—For the purposes of this clause,—
(a) a company shall be deemed to be a subsidiary company of the holding company even if the control
referred to in sub-clause (i) or sub-clause (ii) is of another subsidiary company of the holding company;
(b) the composition of a company’s Board of Directors shall be deemed to be controlled by another.
• Section 2(62)- “One-person Company”- The Companies Act, 2013 introduces a new type of entity to the
existing list i.e. apart from forming a public or private limited company, the Act enables the formation of a
ǮǦ ǯȋȌǤ Ǥ
• Section 2(68)- “Private Company” means a company having a minimum paid-up share capital as may be
prescribed, and which by its articles,—
(i) restricts the right to transfer its shares;
(ii) except in case of One Person Company, limits the number of its members to two hundred:
Provided that where two or more persons hold one or more shares in a company jointly, they shall, for the
purposes of this clause, be treated as a single member:
Provided further that—
(a) persons who are in the employment of the company; and
(b) persons who, having been formerly in the employment of the company, were members of the company
while in that employment and have continued to be members after the employment ceased,
shall not be included in the number of members; and
(iii) prohibits any invitation to the public to subscribe for any securities of the company;
• Section 2(85)- “Small Company”-ʹȋͳȌȋȌȋ ϐ ϐȌǡ
ʹͲͳͶ ͳʹͲʹͳϐ
of sub-clause (i) and sub-clause (ii) of clause (85) of section 2 of the Act, paid up capital and turnover of the
small company shall not exceed rupees two crores and rupees twenty crores respectively.
ǡ ϐ Dz dz ʹȋͺͷȌ ʹȋͳȌȋȌ
ȋ ϐ ϐȌǡʹͲͳͶ ͳʹͲʹͳǣ
ϐ ǡ Ǥ
(i) paid-up share capital of which does not exceed 2 Crore rupees or such higher amount as may be
prescribed which shall not be more than 10 crore rupees; and
ȋȌ ϐ ϐ
exceed 20 crore rupees or such higher amount as may be prescribed which shall not be more than 100
crore rupees:
Provided that nothing in this clause shall apply to –
(a) a holding company or a subsidiary company;
(b) a company registered under section 8; or
32 Lesson 1 • EP-CL
(c) a company or body corporate governed by any special Act; [section 2(85)].
• Dormant company: A company formed and registered under this 2013 for a future project or to hold an asset or
ϐ
make an application to the Registrar for obtaining the status of a dormant company.(Section 455)
• Nidhi company: means a company which has been incorporated as a Nidhi with the object of cultivating the
habit of thrift and savings amongst its members, receiving deposits from, and lending to, its members only,
ϐǡ
regulation of such class of companies. (section 406).
Section 2 (52) “Listed Company” means a company which has any of its securities listed on any recognised
stock exchange;
Provided that such class of companies, which have listed or intend to list such class of securities, as may be
prescribed in consultation with the Securities and Exchange Board, shall not be considered as listed companies.
• ȋ ʹ ȋ ϐ
ϐdetails) Rules, 2014)
The following classes of companies shall not be considered as listed companies, namely:-
a) Public companies which have not listed their equity shares on a recognized stock exchange but have listed their –
(i) non-convertible debt securities issued on private placement basis in terms of SEBI (Issue and
Listing of Debt Securities) Regulations, 2008; or
(ii) non-convertible redeemable preference shares issued on private placement basis in terms of
SEBI (Issue and Listing of Non-Convertible Redeemable Preference Shares) Regulations, 2013; or
(iii) both categories of (i) and (ii) above.
b) Private companies which have listed their non-convertible debt securities on private placement basis on
a recognized stock exchange in terms of SEBI (Issue and Listing of Debt Securities) Regulations, 2008.
c) Public companies which have not listed their equity shares on a recognized stock exchange but whose equity
ϐ ʹ͵ȋ͵Ȍ ǡʹͲͳ͵Ǥ
• Section 2(45) “Government Company” ϐǦ
paid-up share capital is held by the Central Government, or by any State Government or Governments, or
partly by the Central Government and partly by one or more State Governments, and includes a company
which is a subsidiary company of such a Government company.
3. Promoter: ǮǯȂ
ȋȌ ϐ Ǣ
(b) who has control over the affairs of the company, directly or indirectly whether as a shareholder,
director or otherwise; or
(c) in accordance with whose advice, directions or instructions the Board of Directors of the company is
accustomed to act:
Provided that nothing in sub-clause (c) shall apply to a person who is acting merely in a professional capacity.
[section 2(69)].
4. Independent Director:Ǯ ǯϐ ǡ
requirements relating to their appointment, role and responsibilities. “Independent Director” means an
independent director referred to in sub-section (6) of section 149 of the Companies Act, 2013. [Section 2(47)
& Section 149(6)].
5. Audit and auditors
a. Mandatory auditor rotation and joint auditors: The Act mandates the rotation of auditors after the
ϐǤȋ ͳ͵ͻȌǤ
b. Secretarial audit: The Act mandates Secretarial Audit for the following:
i. Listed companies;
Ǥ Ǧ ϐ Ǣ
Ǥ ϐ Ǣ
Ǥ ϐ
institutions of one hundred crore rupees or more.
The Secretarial Audit Report is required to be annexed to the Board’s Report (Section 204)
c. Secretarial Standards: ϐ
the Institute of Company Secretaries of India with respect to general and board meetings [Section 118
(10)].
6. Class Action Suits- The Act introduces a new concept of class action suits which can be initiated by
shareholders against the company and auditors.
LESSON ROUND-UP
• T Ǯ ǯ ȋ α Ǣ α Ȍǡ
originally referred to an association of persons who took their meals together.
• The main characteristics of a company are corporate personality, limited liability, perpetual succession,
separate property, transferability of shares, capacity to sue and be sued, contractual rights, limitation of
action, separate management, termination of existence etc.
• The company, though a legal person, is not a citizen under the Citizenship Act, 1955 or the Constitution
of India. Though it has established through judicial decisions that a company cannot be a citizen, yet it has
nationality, domicile and residence.
• In India after independence, the Companies Act, 1956 was enacted with a view to consolidate and amend
the earlier laws relating to companies and certain other associations.
• Major Development in the Company Law in India.
• Where a fraudulent and dishonest use is made of the legal entity, the individuals concerned will not be
allowed to take shelter behind the corporate personality. The Court may break through the corporate
shell and apply the principle of what is known as “lifting of or piercing the corporate veil”.
GLOSSARY
Jurisprudence The study of law and the principles on which law is based.
Bill A bill is proposed legislation under consideration by a legislature. A bill does not become
law until it is passed by the legislature. Once a bill has been enacted into law, it is called an
act of the legislature, or a statute.
TEST YOURSELF
ȋ ǤȌǤ
3.
2. State the consequences in each of the following cases giving reasons for your answers:
(a) A Private Company has 210 members in total of which ten are the employees of the company. Five
of these employees leave the employment of the company.
ȋȌ ϐʹͲǡ ͵ͲǤ
4. “The fundamental attribute of corporate personality is that the company is a legal entity distinct from the
members.” Elucidate the above statement.
ͷǤ ϐ
companies?
6. Write short notes on:
(a) Perpetual succession
(b) Transferability of shares
(c) Limited liability of shareholders
(d) Corporate personality
(e) One person company.
7. Examine the following and say whether they are correct or wrong:
ȋȌ ϐ Ǥ
(b) Members are the owners of the company’s undertaking.
(c) The term “body corporate” connotes a wider meaning than the term “Company”.
(d) Every member of an illegal association shall be personally liable for all liabilities incurred in
carrying on the business.
(e) A company is a juristic legal person.
8. Comment on the following statements :
ϐ Ǥ ǡ
Lesson Outline
• •
• • Ǧ
• ϐ •
•
• •
• ǧ
• •
• •
• •
•
38 Lesson 2 • EP-CL
Regulatory Framework
The Companies Act, 2013
͵
Ͷ
ͺ Ǧ
ͻ
ͲȋͳȌ Ǧ
The Companies (Share Capital & Debentures) Rules, 2014
Rules Deals with
͵
Ͷ
ͷ ϐ ȋ Ȍ
ϐ
ϐ
ͺ
ͻ
ͳͲ
ͳͳ
ͳʹ
ͳ͵
ͳͶ
ͳͷ
ͳ
ϐ
ͳ Ǧ
The Companies (Prospectus & Allotment of Securities) Rules, 2014
Rules Deals with
ͺ
ͻ
ͻ
ͳͲ
ͳͳ
ͳʹ
ͳͶ
The SEBI (LODR) Regulation 29, 30(6), 31 and other disclosure requirements regarding
Regulations, 2015 issue and Allotment of Shares
Depositories Act, 1996 Section 5, 6, 7, 8, 9, 10 and other Provisions related to Depositories
The SEBI (Depositories and Participants) Regulations, 2018
The SEBI (ICDR) Regulations, 2018
40 Lesson 2 • EP-CL
Nominal,
Authorised or Issued Capital Subscribed Capital
Registered Capital
Paid-up Share
Called-up Capital
Capital
(e) Called-up 2(15) ǡ
Capital Ǥ
Ǥ
(f) Paid-up Share 2(64) Ǧ
Capital Ǧ
Ǧ ǡ
ǡ Ǥ
(g) Equity & Explanation under (i)‘‘equity share capital’’ǡ
Preference Section 43 ǡ
Share Capital Ǣ
(ii)‘‘preference share capital’’,
ǡ
Ǧ
Ȍ ǡ ϐ
ϐ ǡ
ǦǢ
Ȍ ǡ
ǡ Ǧ
Ǧǡ ǡ
ϐ
ϐ ǡ ϐ
Ǥ
ǡ
ǡǣǦ
ȋȌ ǡ
ϐ Ǧ
ȋȌ ȋȌǡ ǡ
ǡ
Ǣ
ȋȌ ǡ
ǡǡ
ϐǦ ȋȌ ȋȌǡ
ǡ
ǡ
Ǥ
Nature of a Share
ȋȌ ϐ ǡ
Ǥȋ ǯȌǤ
ȋ Ȍ ͶͶ ǡʹͲͳ͵
Ǥ
Share Capital
Ǧ
Ǧ
Lesson 2 • Share and Share Capital 43
• ǣ
Cumulative and Ǥ
Non-Cumulative • Ǧ ǣ ǡ
Ǥ
•
Convertible and Ǥ
Non-Convertible • Ǧ
Ǥ
Point to remember:
As per section 55 of the Companies Act, 2013, no company limited by shares shall, issue any preference shares
which are irredeemable.
44 Lesson 2 • EP-CL
ȋȌ ǡ
ȋȌ
ǡͳͻͷ
Issue of
ǡͳͻͻʹ securities ȋȌ
Ƭ ǡͳͻͷ
The
ǡʹͲͳ͵
Chapter III of the Companies Act, 2013 deals with “Prospectus and allotment of securities”, the
chapter is divided into two parts:
•
For a private company, Section 23(2) provides that a private company may issue securities:
ȋȌ Ǣ
ExplanationǤǦ ǡ Dz dz
ǡ ǡ
ϐ
ȋͻȌ ʹ ǡͳͻ͵ͺǢ
ȋȌ Ǣ
ȋȌ ϐ ȋ Ȍǡ
ǡ
ǡ ϐ
ǡ Ǣ
Ͷʹ ϐ
ȋ Ȍ
Ǧ Ǧ ǡ ϐ ϐ Ǥ
GOVERNING LAWS
ǣ
ǡ
ǡ ǡʹͲͳ͵ǡ
ǡͳͻͷǡ ǡͳͻͻʹ ȋ ȌǡʹͲͳͺǤ
ǡ
ǡ Ǥ
ʹͶ Ǧ
Ǥ
ʹͶ ǡ
ǡ ϐ
ǡ Ǥ
Ǥ
PROSPECTUS
Ǥ ϐ ʹȋͲȌ
Ǧ ͵ʹ
͵ͳ ǡ ǡ
Ǥ
Red-herring Prospectus ͵ʹ
Ǥ
Shelf Prospectus ͵ͳ
Ǥ
Ǧ
SHELF PROSPECTUS
Ǥ
Ǥ
Ǥ
ǡ ȋ Ȍ
ǡϐ Ǥ
ϐ
Ǥ ϐ
ǡ
ǡ Ǥ
ϐ ϐ
Ǥ
• ǡ
• ϐ ϐ
ǡ
• Ǥ
ǡ
Ǥ
ϐ
ǡ According to Rule 10 of the Companies (Prospectus and
Allotment of Securities) Rules, 2014, the information
memorandum shall be prepared in Form PAS-2 and
ǡ ϔ
ȋ ϔ Ȍ ǡ
2014 within one month prior to the issue of a second or
ǡ subsequent offer of securities under the shelf prospectus.
ϐǤ
RED-HERRING PROSPECTUS
Ǧ
Ǥ Ǧ
Lesson 2 • Share and Share Capital 49
ABRIDGED PROSPECTUS
͵͵
According to section 2(1) of the Act
“abridged prospectus” means a
Ǥ ǡ
memorandum containing such
ǡ
salient features of a prospectus as
Ǥ
ϔ
and Exchange Board by making
regulations in this behalf.
Ȅ
ȋȌ ϐ
Ǣ
ȋȌ Ǥ
ϐ Ǥ
ȋȌ ǡ
ϐ Ǥ
Let us Remember!
ͳǤ Ǥ
ʹǤ Ǥ
Refund of money
Let us Remember!
ǡϐ
Ǧ͵Ǥ
Case Laws:
Related to return of allotment
ȋȌ ƬǤǤ ǤͷͿͼǦȋͶȌǦǦͶ;ͼǦ,
ϐ
ͷȋͳȌ ǡͳͻͷȏ ͵ͻ ǡʹͲͳ͵Ȑ
ǦǤ Ǧǡ
ǡ
Ǥ ǤǤǤǯ ǣDz
dzǢ
ȋȌ ǤǤǤ ȏͷͿͽͶȐͺͶͷͷͷͼȋȌǡ
ǡ
ǡ Ǣ
ȋȌ Harmony and Montage Tin and Copper Mining Company; Spargo’s case ȋͷ;ͽȌǤ
ǡ Ǣ
ȋȌ Ǥϔ AIR 1944,
Ǥ
Case Laws:
Related to allotment
ȋȌ
Ǥȏ ʹͻͲǤȋͳͺͷȌȐǢ
ȋȌ ϐ[Portugese
ǡȋͷ;;ͿȌͺǤͷͼͶȋȌȐǢ
ȋȌ
ȏǤǤǡȋͳͺͺʹȌȐǢ
ȋȌ ǡ
Ǥ Ǥ[Household
ǤǤǤ ȋͳͺͻȌȐǢ
ȋȌ
ȏ ǤǤȋͷ;ͽͶȌȐǤ
SHARE CERTIFICATE
ϐ ǫ
ϐ ϐ
ǡ ͶȋͳȌ ǡ ϐ
Ǥ ǡǡ
Ͷͷ ǡʹͲͳ͵
ǡ ǡ
ϐ Ǥ prima facie
ǡ ǡ Ǥ
Ͷͷǡ
ϐ Ǥ
ǡ ϐ Ǥ
Ǥ
ϐ
Ǥ ϐ
ϐ Ǥ
ǤʹǤ
56 Lesson 2 • EP-CL
ϐ
Ǥ
ϐ
ϐ ϐ Ǥ
ϐ ϐ
ϐ Ǥ
Let us remember!
• ϐ Ǥ ǤͳǤ
• ϐ
ϐ Ǥ ǤʹǤ
ȏ ͷȐ
ǡ ǡ Ǯǯ
ǡ
ȋȌ
Ǣ
ȋȌ Ǥ ǯ
Ǥ
ͳ
͵ϐ ͳ Ǥ
ͷǤ
ǡ͵ǣ
ȋȌ Ǣ
ȏͶȋ
Debentures) Rules, 2014]
ǡǤ
ǡǣǦ
ȋȌ Ǣ
ȋȌ Ǥ
ǡ
ǤȋȋȌ ǡʹͲͳ
ǡ ǡ
ͳͲͺȌǢ
ȋȌ ϐ ϐ ϐ
ϐ Ǣ
Ǣ
ϐϐ
Ǥ
ȋȌ Ǣ
ȋ Ȍ
Ǣ
ȋȌ ǡ
Ǣ
Conversion of existing equity share capital into differential voting rights and vice-versa not
possible
Ǥ
Register of Members to contain the details of equity shareholders having differential voting rights
ǡ
ͺͺ Ǥ
͵Ǥ ǡ ǡ
ϐǤ
Ǥ ǡ ǡ ͵Ͳ ǡ ϐ
Ǧ͵ǡ ϐȋϐ
ȌǡʹͲͳͶǤ
Exceptions
Issue and redemption of preference shares by company in infrastructure projects
ʹͲ ͵Ͳǡ ͳͲΨ
ϐǡǡ
Ǥ
ǮǮ ǯǯ ϐ Ǥ
ȋȌ Ǣ
ȋȌ Ǧ ȋȌ ǡ ǡ ǡ
ϐ ǯ ǡ
Ǥ
Prescriptions under the Companies (Share Capital and Debentures) Rules, 2014 with regard to
issue and redemption of Preference shares (Rule 9)
Conditions
ǡ ǡ
ǡǣǦ
ȋȌ
Ǣ
ȋȌ ǡ ǡ
Ǥ
Resolution authorising preference shares to set out certain particulars
ǡ
ǡǣǦ
ȋȌ ǦǦǢ
ȋȌ Ǣ
ȋ Ȍ ϐǡǦ
Ǣ
ȋȌ Ǧ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǥ
Explanatory statement to special resolution to set out certain particulars
ǡ ͻȋ͵Ȍ
ǡ Ǧ
ȋȌ Ǣ
ȋȌ ǤǤ Ǧ ǡ Ǧ ǡ
Ǧ Ǣ
ȋ Ȍ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ǡ ǡ ǤǢ
ȋȌ ǡ ǡ
ǡ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǥ
Case Law:
Remedies available for Preference shareholders in relation to redemption of preference shares
ȋȌȋȌǤ
Offshore Limited (Respondent) ͷͷ
ǡʹͲͳ͵
Ǥǡ ϐ
ǡ ʹͲͳ͵ Ǧ
Ǧϐ ͷͷ ǡ
ǡǯ
ȋȌǤ
ǡ ϐǮȋȌǯ ʹȋͷͷȌ
ͺͺ ǡʹͲͳ͵ǡϐ ʹͶͷ ǡ
ǡ Ǥǡ
ǡ ϐ ͷͷȋ͵Ȍ
ǡʹͲͳ͵ϐ ʹͶͷ ǡ
ʹͲͳ͵ ǤͳͳǡʹͲͳ
Ǥ
ǧ
ȑ ʹȍͳȎȍȎȒ
ǣ
¾ Ǣ Period of Notice for offer under
Right Issue under Section 62(1)
¾ ϐ (a)(i)
͵Ͳ
ͳʹ
ǡ
ȋ
ǡ Ǣ
Ȍ ǡ ʹͲͳͶǡ
¾ ǡ
Ǣ
Ǣ
Ǥ
¾
[Inserted by the the Companies (Share
ϐ Ǣ
Capital and Debentures) Amendment
¾ ǡͶͷǢ Ͷͷǡ
Ǣ 2021].
¾ Ǧ
Ǥ
Ǥ
ǡ
ǡ
Ǥ ǡ
ǡ ϐǦ Ǧ
Ǥ
ʹ Ǥ
ʹ ǣǦ
ȋȌ
ȏ ʹȋ͵ȌȐǤ
Ǥ
ȋȌ
ȏ ʹȋͶȌȐǤ
ǡǡ
ǡ
ϐǤ
ʹȋͶȌǡ
ϐ ǡǡ ǡ
ȏ ʹȋͷȌȐǤ
ǡ ʹȋͶȌǡ
ʹȋͶȌ ǡ ǡ
Lesson 2 • Share and Share Capital 67
ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ȁ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ǡ Ǣ
ȋȌ Ǣ
ȋȌ
Ǣ
ȋȌ ǡǡ Ǣ
ȋȌ
ǡ Ǣ
ȋȌ ϐ
Ǣ
ȋȌǦǦ Ǥ
ȋȌ
Ǣ
ȋȌ
ǡ Ǣ
ȋȌ ǡ
ǡǢ
ȋȌ
ǡ Ǧ
ȋȌ ǡ
ǡ
ȋȌ ǡ
ǡ
Ǥ
Ǧ ȋȌȋȌ
Ǣ
ȋȌ ǡ
ϐ Ǣ
ȋȌ Ǧ ǡ Ǧ
Ǧ
ȋȌ Ǧ ǡ
Ǣ
74 Lesson 2 • EP-CL
Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014 prescribes the
following procedure in connection with Private Placement:
Special Resolution of Shareholders
ǡ
Ǥ
ǯ ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋ Ȍ ϐ ȋ ǡȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ǡ ǡ ǡ
Ǣ
ǣ
ϐ ͳͺͲȋͳȌ
ȋ Ȍ ͳͻȋ͵Ȍȋ ȌǤ
Ǧ ǡ
ϐ ͳͺͲȋͳȌȋ Ȍǡ ϐ
Ǥ
ϐǡϐ
Ǥ
Maximum Number of persons to whom offer can be made:
ǦȋʹȌͳͶ
ϐ Ǥ
ϐ
ȋȌǦ ȋͳȌ ʹǤ
ϐ
ǡ Ǥ
ǦȋȌǦȋʹȌ ǣ
ȋȌ Ǧϐ
ǡͳͻ͵ͶǢ
ȋȌ ϐ
ǡͳͻͺǤ
Ǥ
78 Lesson 2 • EP-CL
ͷǤ ϐ
Ǥ
Ǥ Ǥ
Ǥ ϐ
ǡǡ Ǥ
ͺǤ Ǥ
ͻǤ
Ǥ
ͳͲǤ ǦǡǦ
Ǥ
ͳͳǤ ȀǤ
ͳʹǤ ϐForm MGT-14͵Ͳ
Ǥ
ͳ͵Ǥ ͵ͲϐForm PAS-3
ϐȋϐ ȌǡʹͲͳͶǤ
ͳͶǤ ϐ
ͷȋͶȌǤ ϐ ǡ
ϐ Ǥ
ͳͷǤ Ǥ
ͳǤ ǡ ȋȌǡǡʹͲͳͷ ȋ Ȍ
ǡʹͲͳͺ Ǥ
SWEAT EQUITY SHARES
Issue of Sweat Equity Shares
ʹȋͺͺȌǡ
ǡ Ǧ
ǡ Ǥ
ͺȋͳȌȋȌǡʹͲͳͶǣ
Ǧ
ȋȌ ǮǮǯǯǦ
ȋȌ Ǣ
ȋȌ ǡ Ǣ
ȋ Ȍ ϐǦ ȋȌȋȌǡ
ǡ Ǥ
ȋȌ Ǯ ǯ ϐ
Ǧ
ǡ
ǡ
Ǥ
ͷͶ
Ǧ ǤǤ Ȁ ϐ
ǡǤ Ǥ
Lesson 2 • Share and Share Capital 81
• Ǧ Ǣ
• Ǧ Ǧ Ǥ
ȏ ͳȋͳȌ ȋ
Capital and Debentures) Rules, 2014]
Ǧ
ͳͲʹ ǣ
ȋȌ Ǧ
Ǣ
ȋȌ Ǧ Ǣ
ȋ Ȍ Ǧ Ǣ
ȋȌ Ǧ Ǣ
ȋȌ Ǧ Ǣ
ȋȌ Ǧ Ǣ
ȋȌ Ǧ Ǣ
ȋȌ Ǧ Ǧ
ϐ
ȋȌ Ǧ Ǧ Ǣ
ȋȌ ǡ
Ǣ
ȋȌ ȋȌ
Ǧ
Ǣ
ȋȌ ȋȌ
Ǣ
ȋȌ Ǧ ȋȌ ȋȌǦ Ȃ
ȋȌ Ǣ
ȋȌ
Ǧ
ǡ Ǥ
ȋȌ ϐ ǡ ǡ
ǡϐ
Ǣ
ȋȌ ϐ
Ȃ
ȋȌ
Ǣ
ȋȌ ǡ ǡ
ǯ
ϐ
Lesson 2 • Share and Share Capital 87
ǡ
Ǣ
ȋȌ ǡ
ȋ ȌǢ Ǧ
ǡʹͲͳ͵Ǥ
ȋȌ ǯǣ
ȋȌ ǯǢ
ȋȌ
Ǣ
ȋȌ Ǧ
Ǣ
ǡ ǡ
Ǧ Ǧ
Ǣ
ȋȌ ϐ ȋȌ
ǡǡ
Ǥ
Ǧ ȏͳȋʹȌȐ
ǡǦ ǡϐ
Form No. SH. 8ǡ Ǥ
ǡ ǡǤ
ȏͳȋͶȌȐ
ϐ
ʹͳϐǤ
Ǧ ȏͳȋͷȌȐ
Ǧ ͳͷ ͵Ͳ
Ǥ
ǡǦ
ϐǤ
Ǧ Ǧȏ ͺȋʹȌȋȌȐ
Ǧ
Ǧ Ǥ ǡ ǡǡ
Ǥ
ͳȋͳʹȌȋȌǡʹͲͳͶ
Ǧ Form No. SH-10Ǥ
ϐ
Ǥ
Ǥ
Lesson 2 • Share and Share Capital 89
• ǡ
• Ǥ
No liability of member
ǡǡ
ǡǡǡ ǡǡ
ǡ ǡϐ
Ǥ
• Ǣ
ͶͶǤ
ȋȌ ͷͷ
ȏ ͷͷȋ͵Ȍ ǡʹͲͳ͵ȐǢ
Case Laws:
ȋȌ Ǥǡ ǤȏȋͶͶ;ȌͷͺͺͺͼͿȋȌȐǡ
Ǥ
ǡ
Ǥ ǡ
Ǥ
Ǥ
ȋȌ ȋ Ȍ Ǥǡ Ǥ ȋͷͿ;ͿȌǡ
ǡ
Ǥǡ ϐ
ϐǤ ǡ
Ǥ
ȋȌ Ǥǡ ȏȋͶͶͿȌͷͺͿͼͺͼȋǤȌȐǡ
ͺǡͺͻǡͳͻ ʹͷ
Ǥͳͺ͵ǤͳͲ
ͳͲͲ ȋ ǡ
ʹͲͳ͵ȌǤ ǡ ʹͷ
͵ǡͺ͵ͷ ͳͳʹ
ǡ͵ǡʹ͵ Ǥ
Ǥ
Ǥ ǡ
Ǥ
ȋȌ ǤǤǡȋͷ;ͿͺȌͿͿǡͺͶǣȋͷͿͿͷǦͺȌǡ
Ǥ
ϐ ϐ
Ǥ
ȋȌ ǤǤǡȋͷ;ͿͺȌȋȌǡ ǡ
Ǥ ǡ
ǣ
ȋȌ Ǣ
ǡ
Ǥ Ǧ
Ǥ
Ǧ ǤǦ
Ǣ Ǥ
ȋȌ Valuation of Shares under Preemption clause:
Ǧ
Ǥ ϐ
Ǥ Ǧ
ϐ ȋȌǡ
ǡ Ǥ
ǡ
ǡǤ
ȋ Ȍ Powers of directors to refuse registration of transfer of shares:
ϐ Ǥ
Ǥ
PUBLIC COMPANY
ͷͺȋʹȌǡ Ǥ
Ǥ Ȁ Ǥ
ǡ ͷͺȋʹȌ
Ǥ
ϐǡϐǡǡ ǡǡ ǤȀ
ǡ ǤǤ
ǡ Ǥ
Instruments of transfer to be presented to the company
ͷȋͳȌ ǡ ǡ ǡ
ǡ
Ͳȋ
ǡ Ȍ ϐ
ǡ ϐ ǡ ϐ
Ǥ ǡ Ǥ
in Form NoǤSH.4.
ǡForm No. SH.4
Ǥ
ǡ ͷȋͳȌ ǡ
ȏ ͷȋʹȌȐǤ
Registration of partly paid up shares – Notice to the transferee
ͷȋ͵Ȍǡ ǡ
ǡ Form No. SH.5
Ǯ ǯ Ǥ
96 Lesson 2 • EP-CL
ϔȀ
ǡ Ǥ
ǡͳͺͻͻǤ
Ǥ
ͷȋͳȌǡ
ǡ
ϐ Ǥ
Ǯǯϐ Ǥ ʹȋͳͳȌ
ǡͳͺͻͻǡǮǯǡ
ϐ
Ǥ
ͳʹȋͳȌ ǡͳͺͻͻǡϐ
ǡϐ ǡ ǤǦ ȋʹȌ
ǡǡ ǡǤǦ ȋ͵Ȍ
ϐǤ ͳ ǡͳͺͻͻ
ǡ Ǥǡ
Ǥ
Lesson 2 • Share and Share Capital 97
Case Laws:
ǤDzdz
ʹȋͳͳȌ ǡͳͺͻͻ ϐ
Ǥ ͳͲͺȋͳȌ ǡͳͻͷȏ ͷȋͳȌ
ǡʹͲͳ͵Ȑ
Ǥȏ
Ǥ ǤǡǤͷͷͿ; ͷͶǤͷǤͷͿ;ȋȌȐ.
ǤǤƬǤǤ (1990),
ϐ
Ǥ
ǡ
ǯ
Ǥ
ǡ ǤǡȋȌ
ǡ Ǥ
ȋ Ȍ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ϐ Ǥ
ȋȌ ǡ
ǡ Ǥ
ȋȌ
ͷ ǡ ʹͲͳ͵ ǡ ǡ
Ǥ
ȏǦǤ
ȋȌǤȋͶͶͻȌͷͺͼ;ͻȋȌǣȋͶͶͻȌͻͿͺͷͺȋȌȐǤ
ȋȌ
Ǥ
ȋȌ ϐ Ǥ
ȋȌ Ȁ
ǡǤ
ȋȌ ϐ
Ǥ
ȋȌ ǡ
Ȁ ǡ
Ǥ
ȋȌ ǡϐ Ǥ ǡ
ǡϐǡ ϐǤ
ȋȌ ǡ
Ǥ
CHECKLIST FOR COMPANY SECRETARY
ǡ ǡ
ͷ
ǡʹͲͳ͵ Ǥ ϐ
ǡ
ϐ Ǥ
ǣ
ȋͳȌ ȋ ǦͶȌϐǤ
ȋʹȌ ϐǤ
ȋ͵Ȍ ϐ ȋ Ȍ Ǥ
ȋͶȌ ǡǡǡ Ǥ
Lesson 2 • Share and Share Capital 99
Let us remember !
ǡ Form No.
SH.5
Ǥ
Case Laws:
ȋȌ
Ǥ[Appeal to the CLB No. 27, of
ͷͿͽͻͷͽǡͷͿͽͼǡǤ ȐǢ
ȋȌ ǡ
ǡϐ Ǥ
ǡ ǤȏƬǤ
ǤǤǡͷͿͼȐǢ
Lesson 2 • Share and Share Capital 101
ȋȌ
ǡ ϐ ϐ
Ǥ ǡ
ǡ Ǥ
ǡǤȏǤ Ǥ
Ǥ ǤǤǡ (1972)];
ȋ Ȍ ǡ
ϐ
Ǥ ǡ
ϐϐǤ
ͳͳͳȋʹȌȏ ͷͺȋ͵ȌͷͺȋͶȌ ǡʹͲͳ͵ȐȏǤǤǦ
Asia Carpets Ltd.ǡǤͷͿ;Ͷ ͼǤͷǤͷͿ;ͷȋȌȐǢ
ȋ Ȍ ǤǤǤǤǡ ͳ͵ǤǤͳͻͺ͵ȋȌǡ
ȋȌ
ǡǦ
ǡǡǡ Ǥ
ȋȌ Ǣ
ȋȌ ϐ
Ǣ
ȋȌ ǡ
Ǣ
ȋȌ ǡ
Ǣ
ȋȌ ǡ ǡ
ǡǤ ǡ
ϐ ϐ
ϐ Ǥ
2. Order of the Tribunal:ǡǡ
ǡ ϐ
ǡ ǡǡǤ
3. Right to transfer not restricted: ͷͻ ǡ
Ǥ
Ǥ
4. Contravention of provisions of the lawǣ
ȋȌ ǡͳͻͷǡ ǡ
ͳͻͻʹ ǡǡ
ǡ ǡ ǡ
ǡ
Ǥ
ͷǤ ϐ ϐ ǣ
ϐ ǣ
ȋȌ Ǣ
ȋȌ ǯǢ
ȋ Ȍ Ǣ
ȋȌ Ǣ
ȋȌ Ǧ Ǥ
ȋȌ Ǥ
6. Mutation of name in other Company’s register of members:
ǯ
ǤȏǤ ƬǤ ȋͷͿͿͻȌ;
Cases 533(Bom)]
(Note: Students may also see Lesson 3 Members & Shareholders in this context)
LOST TRANSFER DEEDS
ǡǡǤ ǡ
ͷȋͳȌ
ȋͲ
Ȍǡ ϐǤ
Lesson 2 • Share and Share Capital 103
Ǥ ǡ
Ǥ Ǥ
Ǥ
Rejected Documents
Ǥ ǤǤǤȋͷͿͿͽȌǡ
ͳͲͲǤǡǡ
ϐ Ǥ
ǡ Ǥ Ǧ
Ǥ
ȋ Ȍ
Ǥ
ϐ
ϐ ǡ ǡ
ȋ Ȍ
ϐ ǤǤȏ ǤǤ
ǤǤǤȋͷͿͿͺȌͷ ͷͽ;ȋȂȌȐǤ
Impounding of Documents Relating to Share Transfer
ǡ Ǥ Ǥ Ǥ Ǥǡ ȋͷͿͿȌ ͽ ;ͶͿ ȋȌ
͵͵Ͷʹ Ǥ
Case Laws:
Related to Transfer of Shares
ȋȌ ǤǤǤ ǤǤ (2005)ǡ
Ǥ
ͳͲͺȋͳȌ ͳͲͺȋͳȌ ȏ
ͷ ǡʹͲͳ͵ȐǤ
ͳͲͺȋͳȌȏ ͷ ǡʹͲͳ͵Ȑ
Ǥ ȋȌ
ǤǤ ǡǦ ȋͳȌ
ǡ Ǧ
ǡ
ǡ Ǧ
ȋͳȌ ǡ Ǧ ȋͳȌϐǤ
ǡϐ
ǡ
Lesson 2 • Share and Share Capital 107
EXAMPLE
ǤǡǮǯ
ǤǡǮǯ
Ǯǯ ϐ
ǡ
ϐ Ǥ ǡǮǯ
ǡ ǡǡǮǯ
Ǥ ϐ ǡǮǯǮǯǡ
ǡ ǯ ϐ ǡ ǯǤ
Ǯǯ ϐ
ǤǮǯ ǡ ϐ ǡǯ
ǤǮǯ
ǡ ϐ Ǯǯ ǮǯǤ
Ǯǯ Ǥ
Ǯǯǡ Ǯǯǡǡ
ǡ Ǥ
Transferee’s right to Dividends, Bonus and Rights Shares Ǧ ǡ
ǡ ǡǡϐ
ǡǡ ǡ
Ǥ
ȏǤ ǤǤǡȋͷͿͻͼȌͼͷͼ;ǣ ͷͿͻͼͼͻͻȐǤ
Dividend to transferee after transfer Ǧ Ǥ
ǡ ϐǯ
ǡ ǡ
Ǥ ȏ Ǥ tdǤ Ǥ Ǥ Ǥǡ ȋͷͿͿͺȌͷ ͷͽ; ȋǦȌȐǤ
Ǥ
Position under the Securities Contracts (Regulation) Act, 1956 Ǧ
ǡ ʹ ȋȌ ǡͳͻͷȋͶʹͳͻͷȌǤ
ǣ
Title to dividends -
ͳǤ
ǡ
ǡ
ǡ
ϐ Ǥ
Explanation: ϐ Ǧ
ȋȌ ǡ
Ǣ
ȋȌ ǡ
Ǣ
ȋȌ
ǡ Ǥ
ʹǤ Ǧ ȋͳȌ Ǧ
ȋȌ
Ǣ
ȋȌ
ǡ ǡ
Ǥ
EFFECTS OF TRANSFER
ǡ
Ǥ
Ǥ ǡ
ǡȏ ǤǤ ǤǤǡȋͷͿ;Ȍͻͺ
432 (DB)(Bom)].
Ǥ
Ǥ
Lesson 2 • Share and Share Capital 113
Case Law:
ȋȌ
ͲǡͲͲͲ
ǡ
ϐ ǤƬǤ Ǥ ƬǤ,
dated January 13, 2020.
ǡϐ
Ǥ
ȋȌ ǡͳͻͷǡ ǡ
ͳͻͻʹ ǡʹͲͳ͵ ǡǡ ǡ
ǡ ϐ
Ǥ ǡ
Ǥ
Ǧ
Ǥ
ǫ
(a) In the case of existing securities:
ǡ
ϐ Ǥ ϐ
Ǥ
ϐ Ǥ
(b) In the case of fresh issue:
Ǥ
ǡ
Ǥ
ǡ ϐ Ǥ
Ǥ
(c) In the case of exit from the depository:
ϐ ǡ
Ǥ
Ǥ ϐ ͵Ͳ
Ǥ
(d) In the case of transfer within the depository:
ϐ
Ǥ
(e) In the case of pledge:
ǡϐ
Ǣ ϐ
Ǥ
Ǥ
DEMATERIALISATION AND REMATERIALISATION OF SHARES
Dematerialisation of Shares
ϐ Ǥ
Ǥ ǡ ϐ
Ǣ ϐ
ϐ Ǥ ϐ ǡ ǡǡǡ Ǥ
ϐ Ǥ
Lesson 2 • Share and Share Capital 115
Transfer of shares in dematerialised form do not
ǤǤǤͲͳȀͲȀʹͲʹͲ
require execution of instrument of transfer in
Ǥ Ȁ
Form SH-4.
Ǥ ǡ
ǡ
Amended Stamp Act w.e.f. 1st July 2020. Ǥ
ǣǦ
• Ǣ
• ǡi.e., ϐ ȋȌ
ȋ Ȍ ȋȌ ǯ Ǥ
ǯϐ ʹͶǦǡ ǡ
ǯǢ
• Ǣ
• Ǥ
Ǥ
Ȃ
ȋȌ Ǣ
ȋȌ ϐ ǯ
Ǣ
ȋȌ Ǯ ǯ ϐǤ ǡ
Ǥ
PLEDGE OR HYPOTHECATION OF DEMATERIALISED SHARES
ϐ ǡ ǡ
Ǥ ϐ ǡ
Ǥ
ȏ ͳʹȐǤ Ǥ
ǣǦ
ȋȌ Ǥ
ȋȌ ϐǡ
Ǥ
ȋȌ ϐ ͳͷ Ǥ
ȋȌ
Ǥ
ȋȌ
ϐ Ǥ
ȋȌ ǡ
Ǥ
ȋȌ ǡ Ǥǡǡ
Ǥ
ȋȌ Ǥ ǡ
ϐ ǡ
Ǥ
120 Lesson 2 • EP-CL
REMATERIALISATION OF SECURITIES
ϐ Ǥ
ǣ
ȋͳȌ ϐ Ǥ
ȋʹȌ ȋȌ Ǥ
ȋ͵Ȍ ϐ ǯǤ
ȋͶȌ ǡ ϐ ϐǤ
ȋͷȌ Ǥ
ȋȌ ϐ Ǥ
ȋȌ Ǥ
ANNEXURE I
SPECIMEN OF THE BOARD RESOLUTION APPROVING THE REGISTRATION OF TRANSFER OF SHARES
“RESOLVED THATǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ
ǤǤǤǤǤǤǤǤǤǤǤǤǡǤǤǤǤǤǤǤǤǤǤǤǤǤȋ Ȍǡ
ϐ ǡ
Ǥdz
“RESOLVED FURTHER THAT ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ ǡ
ϐ ǡ
Ǥdz
ANNEXURE II
SPECIMEN OF BOARD RESOLUTION APPROVING REGISTRATION OF TRANSMISSION OF SHARES
“RESOLVED THATǤǤǤǤǤǤǤǤǤǤǤǥǥǥǤ
ǥǤǤǤǤǥǤǤǤǤȋ Ȍ ǥǥǥǥǥǥǤǤ
ǥǥǥǤǤǥǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ ǥǥǥǥǡ
ǥǥǥǥǥǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǥǥǥǥǥǥǥǥǥǥǥǥǥǥǤǤdz
“RESOLVED FURTHER THAT ǥǤǤǤǤǤǤǤǤǡ
ǡ
Ǣdz
“RESOLVED FURTHER THAT ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ ǡ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ
ϐ Ǥdz
ANNEXURE III
SPECIMEN OF SPECIAL RESOLUTION FOR ALTERATION OF ARTICLES OF ASSOCIATION OF THE COMPANY TO
INCLUDE AN ARTICLE AUTHORISING THE COMPANY TO HAVE ITS SECURITIES DEMATERIALISED
“RESOLVED THAT ͳͶ ǡʹͲͳ͵ǡ
ǣ
ǤǤǤǡ ǤǤǤǣ
Article. Dematerialisation of Securities
A. ϔǣ
Lesson 2 • Share and Share Capital 121
ǣǦ
Ǯϐ ǯ ǤǮ ǯ
Ǥ
Ǯǯ ǡʹͲͳ͵ǡ
ϐ ǡͳͻͻʹǢ
Ǯ ǯ ϐ Ǥ
B. Dematerialisation of Securities
ǡ
ǡͳͻͻǤ
C. Options for investors
ϐ
Ǥ ϐ
ǡ
ǡ ͳͻͻ ǡ ǡ
ϐ ϐ Ǥ
ǡ
Ȁ ǡ
Ȁϐ Ǥ
D. Securities in Depositories to be in Fungible Form
Ǥ ͺͻ
ͳͺ ϐ
Ǥ
E. Distinctive Numbers of Securities held in a Depository
Ǥ
Ǥϔ
ȋȌ ǡ
ϐ Ǥ
ȋȌ ȋȌǡ
Ǥ
ȋȌ ϐ
Ǥϐ
ϐ
Ǥ
G. Service of Documents
ǡ
ǡ ϐ
ϐ Ǥ
H. Transfer of Securities
ͷ
ϐ Ǥ
I. Allotment of Securities Dealt in a Depository
122 Lesson 2 • EP-CL
ǡ ǡ
Ȁ
Ǥ
Ǥ ϔ
ϐ ǡͳͻͻǡ
Ǥ
Explanatory Statement:
ǡͳͻͻǡ ǡ
ǡʹͲͳ͵ǡǡǡǡ
Ǥ
ǡ Ǥ
ǡ Ǥ Ǥ ǡ
ǡ ǯ ǡ
Ǥ ȋȌϐ
ǢȋȌ ǢȋȌǢȋȌ
ǢȋȌ ǢȋȌ
ϐ Ǣ ȋȌ Ǣ ȋȌ Ǣ ȋȌ
ǢȋȌϐ Ǥ
ǡ
Ǥ
LESSON ROUND-UP
GLOSSARY
Explanatory Statement ǡ
Ǥ
ǡ Ǥ
ȋ ͳͲʹ ǡʹͲͳ͵Ȍ
Special Resolution
Ǥ
ǡǡ
ǡ Ǥ
ȋ ͳͳͶ ǡʹͲͳ͵Ȍ
General Meeting Ǥ
Ǥ
Share Capital Ǥ
ǡ
Ǥ
Ǥ
124 Lesson 2 • EP-CL
Red herring Prospectus ͵ʹ
Ǥ
Shelf Prospectus ͵ͳ
Ǥ
Abridged Prospectus ʹȋͳȌ Dz dz
ϐ
Ǥ
Redemption of shares
Ǥ ǡ
Ǥ
ϐ
Ǥ
Employee Stock Option ϐ Ǧ ȋ͵Ȍ ʹ ǡ
(ESOP) ʹͲͳ͵ǡ Dzǯ dz ǡ
ϐ
ǡ ǡ ǡ ϐ
ǡϐ ǡ ǡ
Ǧ Ǥ
Sweat Equity Shares
ǡ Ǧ
ǡ Ǥ
Rights Issue
Ǥ
Bonus Shares ǡ
ϐ
Ǥ
Ǥ ǡ
ǡ ϐǦ
TEST YOURSELF
ȋ ǤȌǤ
ͳǤ Ǥ
ǫ
ʹǤ ϐDzdzǤ ǫ
͵Ǥ
ǫ
ͶǤ ϐ Ǥǫ
Lesson 2 • Share and Share Capital 125
•
• Ǧ ǡʹͲͳ͵
Lesson Outline
• Introduction-Who are Ȉ ϐ
Members? Members
Ȉ ϐ • Rights of Members
• Modes of Acquiring • Liability of Members
Membership • Shareholders’ Democracy
• Who may become a member ? • Shareholders’ Agreement
• Cessation of Membership • Veto Power
• Register of Members Ȉ Ǧ
• Declaration by persons not Ȉ
ϐ
Ȉ
any Share
Ȉ
Ȉ ϐ ϐ
a Company •
128 Lesson 3 • EP-CL
Regulatory Framework
The Companies Act, 2013
Section Deals with
Section 2(55) ϐ
Section 3(1) Ǥ
Section 48(2) Rights of Dissenting Shareholders
Section 72
Section 88 (1) Register of Members
Section 88(2) Index of Members
Section 88(3) ϐ ͳͳ
the Depositories Act, 1996
Section 88(4) Foreign Register
Section 89 ϐ
Section 90 ϐ ϐ
Section 91 Ǧ Ǥ
Section 94 ǡǡ Ǥ
Section 95 Register - An Evidence
The Companies (Management and Administration) Rules, 2014
Rule 3 Register of Members
Rule 4
• In case of a company limited by shares, the shareholders Ǥ Dzdz
Dzdz ǡ ǡ
Ǥ
ǡǤ ǡ
ǡǤǤǡȋȌ
not become its member until the transfer is registered in the books of the company in his favour and his
Ǥ
Similarly, a member who has transferred his shares, though he does not hold any shares yet he continues
to be member of the company until the transfer is registered and his name is removed from the register of
ȏ ͺͺ ǡʹͲͳ͵ȐǤ
• In a company limited by guarantee, the persons who are liable under the guarantee clause in its
Ǥ
• In an unlimited company, the members are the persons who are liable to the company, each in proportion
to the extent of their interests in the company, to contribute the sums necessary to discharge in full, the
debts and liabilities of the company, in tǦǤ
ϐǮǯ
According to Section 2(55) of the Companies Act, 2013, member, in relation to a company, means,
ͳǤ
of the company, and on its registration, shall be entered as members in its register of members;
ʹǤ
in its register of members shall, be a member of the company;
͵Ǥ ϐ
Ǥ
Subscribers to the Memorandum Person who agrees in writing to Every person holding shares of a
who shall be deemed to have become a member of a company company and whose name is
agreed to become members of the and whose name is entered in ϐ
company register of members records of a depository
Accordingly, there are two important elements which must be present before a person can acquire membership of
ǤǡȂ
(i) agreement to become a member; and
ȋȌ ǡ Ǥ
130 Lesson 3 • EP-CL
Ǥ[Balkrishan Gupta v. Swadeshi Polytex Ltd. (1985) 58 Com Cases 563].
The person desirous of becoming a member of a company must have the legal capacity of entering into an agreement
ǡͳͻʹǤ ͳͳ ǡ
Every person is competent to contract who:-
ȋȌ Ǥ
ȋȌ Ǥ
ȋȌ ϐ Ǥ
ȋȌ
Shares in a company are movable property as provided in Section 44 of the Act and are transferable in the manner
ͷ ǡʹͲͳ͵Ǥ
become a member by acquiring shares from an existing member and by having the transfer of shares registered in
ǡǤǤ Ǥ
ȋȌ
ǤǤ
Ǥ Ǥǡ
who is entitled under the law to succeed to his estate, gets the right to have the shares transmitted and registered
ǯǤ Ǥ
If the legal representative of deceased member desires to be registered as a member in place of the deceased
member, the company shall do so or in the alternative he may request the company to transfer the shares in the
Ǥϐ ϐ
ǡǤ
ȋȌ
ǡ ϐ ǡ
Ǥ
ǡǤ ǡǡ
Ǥ
ȋ Ȍ ϐ
ϐ
Ǥ
Subject to the Memorandum and Articles, any sui juris (a person who is competent to contract) except the company
ǡ Ǥ ǡ
certain organizations and persons:
(a) Company as a member of another company: Ǥ
ǡ Ǥ ǡ
Ǥ
Ǥ ͳͻ f the Companies Act, 2013, a subsidiary company cannot become a
Ǥ ǡ
Ȃ
(i) where the subsidiary company holds such shares as the legal representative of a deceased member of the
holding company; or
(ii) where the subsidiary company holds such shares as a trustee; or
(iii) where the subsidiary company is a shareholder even before it became a subsidiary company of the
Ǥ
(e) Foreigners as members: A foreigner may take shares in an Indian company and become a member subject to
the provisions of the Foreign Exchange Management Act, 1999, but in the event of war with his country, he
Ǥ
(f) Minor as member: A member who is not a sui juris ǤǤǡǡ
Ǥǡ
void ab-initioǤ
ȋ ǡʹͲͳ͵Ȍ
agreement in writing for a minor to become a member may be signed on behalf of the minor by his lawful
guardian and the registration of transfer of shares in the name of the minor, acting through his or her guardian,
especially where the shares are fully paid cannot be refused on the ground of the transferee being a minor
[Miss Nandita Jain ǤBenett Coleman and Co. Ltd., Appeal No. 27 of 1972 dated 17.2.78].
After attaining majority, the minor, if he does not want to be a member, must repudiate his liability on the
shares on ground of minority, and if he does so, the company can not plead estoppel on the ground of his
having received dividends during his minority or that he had fraudulently misrepresented his age in his
application for shares [Sadiq Ali ǤJai Kishori, (1928) 30 Bom. L.R. 1346].
If shares are transferred to a minor, the transferor will remain liable for all future calls on such shares so long
Ǥ
ǡǤ
(g) Insolvent as member: Ǥ
ǡϐ
ϐ ȏMorgan ǤGray, (1953) All E.R. 213].
(h) HUF as member: ǡ Ǧ ǡͳͻͳǤ
Ǥ
Ǥ ǡ
Ǯǯ ȏVickers Systems International Limited v. Mahesh P. Keshwani [(1992) 13
Com Cases 317 (CLB)].
(i) Pawnee: A pawnee has no right of foreclosure since he never had the absolute ownership at law and his
ϐ Ǥ ǡǤ
In view of the above, a pawnee cannot be treated as the holder of the shares pledged in his favour, and the
pawner continues to be a member and can exercise the rights of a member [Balakrishna Gupta ǤSwadeshi
Polytex Ltd., (1985) 58 Com Cases 563 (S.C.)].
(j) Receiver: A receiver whose name is not entered in the register of members cannot exercise any of the
membership rights attached to a share unless in a proceeding to which company is a party and an order is
Ǥ
cannot, deprive the holder of the shares whose name is entered in the register of members of the company, the
right to vote at the meeting of the company [Balakrishna Gupta ǤSwadeshi Polytex Ltd., (1985) 58 Com Cases
563 (S.C.)].
(k) Society as a member Ǧǯ ϐ ʹͶǤͳͳǤͳͻʹ ϐ Dz
under the Societies Registration Act, 1860 should not be deemed to be a ‘body corporate’ within the meaning
of the aforesaid provisions [Refer to Section 2(7) (i) of the Companies Act, 1956 (currently refer section sub
clause (i) of clause 11 of section 2 of the Companies Act ,2013) although such a society can be treated as a
‘person’ having separate legal entity apart from the members constituting it and thereby capable of becoming
ͶͳȋʹȌ ǡͳͻͷǤdz
(l) ϔ ǣ ϐ ǡ
becomes liable as a member besides incurring criminal liability under Section 38 of the Act, wherein
Ǥ ͶͶ ǡ ʹͲͳ͵ǡ
prejudice to any liability including repayment of any debt under this Act or any other law for the time being in
force, any person who is found to be guilty of fraud involving an amount of at least 10 lakh rupees or 1% of the
turnover of the company, whichever is lower shall be punishable with imprisonment for a term which shall not
Lesson 3 • Members and Shareholders 133
Joint Members
If more than one person apply for shares in a company and shares are allotted to them, each one of such applicant
becomes a member (Narandas ǤIndia Mfg. Co., A.I.R. 1953 Bom. 433]Ǥ
ǡ Ǥ
have their holding split into several joint holdings with their names in different orders so that all of them may have
ϐǤBurns ǤSiemens Brothers Dynamo Works Ltd.
ȋͳͻͳͻȌͳǤʹʹͷǤ
Nominee joint members
Where the shares of a company were registered in the joint name of the company and one of the directors, it was
Ǥ
Ǥ
the basis of being one of the registered holders as held in Exchange Travel (Holdings) Ltd., Re [(1991) BCLC 728 (Ch
D)].
134 Lesson 3 • EP-CL
Section 3(1) of the Companies Act, 2013 provides that a company may be formed for any lawful purpose by seven
or more persons, where the company to be formed is to be a public company; or two or more persons, where the
Ǣǡ
Person Company that is to say, a private company, by subscribing their names or his name to a memorandum and
Ǥ
Restriction on Membership
ʹȋͺȌȋȌ ǡʹͲͳ͵ǡ
Ǥ
Ǥ
A person ceases to be a member of a company when his name is removed from its register of members, which may
occur in any of the following situations:
(a) He transfers his shares to another person, the transfer is registered by the company and his name is removed
from the register of members;
(b) His shares are forfeited;
(c) His shares are sold by the company to enforce a lien;
(d) He dies (his estate, however, remains liable for calls);
ȋȌ ϐ Ǣ
(f) His redeemable preference shares are redeemed;
(g) He rescinds the contract of membership on the ground of fraud or misrepresentation or a genuine mistake;
(h) His shares are purchased either by another member or by the company itself under an order of the Tribunal
under Section 242 of the Companies Act, 2013;
(i) The member is a company which is being wound-up in India, and the liquidator disclaims the shares;
ȋȌ Ǥ
Though one ceases to be a member, he remains liable as a contributory and is also entitled to share in the surplus,
Ǥ
A controversy had arisen as to whether a public limited company had powers to insert an article in its Articles of
Association relating to expulsion of a member b
Ǥ
The Department of Company Affairs (now, Ministry of Corporate Affairs) ϐ that an article for expulsion of a
member is opposed to the fundamental principles of the Company and is ultra vires the company, the
reason being that such a provision against the provisions of the Companies Act relating to the rights of a member in
a company, the powers of the Central Government as an appellate authority under Section 111 of the Act and the
powers of the Court under Sections 107, 395 and 397 of the Companies Act, ͳͻͷǤ [These sections correspond to
sections 58, 48, 235 and 241 of the Companies Act, 2013 respectively.]
According to Section 6 of the Companies Act, 2013, the Act overrides the Memorandum and Articles of Association
ǡǤ
ȋȌǡǡ ϐ
Ǥ
Lesson 3 • Members and Shareholders 135
As, under Article 141 of the Constitution, the law declared by the Supreme Court is binding on all courts within the
territory of India, any provision pertaining to the expulsion of a member by the management of a company which
Ǥ
ǡ ϐ
amending its articles of association is illegal and void [Circular: Letter No. 32/75, dated 1.11.1975]Ǥ
Ǥ
Section 88 of the Companies Act, 2013 lays down:
ͳǤ
ǡǣȂ
(a) register of members indicating separately for each class of equity and preference shares held by each
member residing in or outside India;
(b) register of debenture-holders; and
ȋ Ȍ Ǥ
ʹǤ Ǧ ȋͳȌ ͺͺ
Ǥ
͵Ǥ ϐ ͳͳ
ǡͳͻͻȋʹʹͳͻͻȌǡ Ǥ
ͶǤ ǡ ǡ ǡ
ǡǦ ȋͳȌ ͺͺ ǡ Dzdz
ǡǦǡ ϐ
Ǥ
ͷǤ Ǧ
to maintain them in accordance with the provisions of sub-section (1) or sub-section (2) of Section 88 of the
ǡʹͲͳ͵ǡ ϐ
ϐǤ
In the case of a company not having share capital, the register of members shall contain the following particulars,
in respect of each member, namely:-
ȋȌ Ǣ ȋ ϐ ȌǢ Ǧ
Ǣ Ǣ ϐ ǡ Ǣ ǯȀ ǯȀ
ǯǢ ǢǢǢ ǡ
of birth of the member; name and address of nominee;
(b) date of becoming member;
(c) date of cessation;
(d) amount of guarantee, if any;
(e) any other interest if any; and
ȋȌ ǡǡ Ǥ
Rule 3 & 5 of the Companies (Management and Administration) Rules, 2014 deal with maintenance of Register
ͺͺǤ
maintain a register of its members in Ǥ ǦͳǤ
136 Lesson 3 • EP-CL
ͷȋȌǡʹͲͳͶǣ
• The entries in the registers maintained under section 88 of the Companies Act, 2013, shall be made within
ǡ ǡ Ǥ
Ȉ ϐ
passed in a general meeting authorising the keeping of the register at any other place within the city, town
ϐ Ǧ
Ǥ
• Consequent upon any forfeiture, buy-back, reduction, sub-division, consolidation or cancellation of
shares, issue of sweat equity shares, transmission of shares, shares issued under any scheme of
arrangements, mergers, reconstitution or employees stock option scheme or any of such scheme provided
ϐ
ϐ ǡ ǡ
ǡ Ǥ
• If any change occurs in the status of a member or debenture holder or any other security holder whether
due to death or insolvency or change of name or due to transfer to Investor Education Protection Fund or
ǡ Ǥ
Ȉ ϐ
ǡ Ǥ
Ȉ
ȋ Ȍ ǡ
ǡ Ǥ
• In case of companies whose securities are listed on a stock exchange in or outside India, the particulars of
any pledge, charge, lien or hypothecation created by the promoters in respect of any securities of the
company held by the promoter including the names of pledgee/pawnee and any revocation therein shall
ϐ Ǥ
• If promoters of any listed company, which has formed a joint venture company with another company have
pledged or hypothecated or created charge or lien in respect of any security of the listed company in
connection with such joint venture company, the particulars of such pledge, hypothecation, charge and
ϐ Ǥ
Ǧ ͺ ȋ Ȍ
Rules, 2014
The entries in the registers maintained under section 88 and index included therein shall be authenticated by the
ǡ
Ǥ
The entries in the foreign register shall be authenticated by the company secretary of the company or person
Ǥ
Lesson 3 • Members and Shareholders 137
Case Laws:
ͳǤ
in the register by satisfying the requirement of either Section 108 or 109 [Corresponds to section 56 of
ǡʹͲͳ͵ȐǤ[Lalithamba Bai v. Harrisons Malayalam Ltd., (1988) 2 Comp LJ 41 (Ker)]Ǥ
ʹǤ ǡ[W.Key &
Son Ltd., (1902) 1 Ch 467].
͵Ǥ
Ǥ[T.H. Saunders & Co. Ltd. Re, (1908) 1 Ch 415].
ͶǤ ǡ Ǥ
[Taylor, Phillips and Richard’s Case, (1897) 1 Ch 298].
ͷǤ ϐ ǡϐ
Ǥ Ǥ[See Re
Vagliano & Anthracite Collieries Ltd., (1910) 79 LJ Ch 769].
Section 88(2) of the Companies Act, 2013 read with Rule 6 of Companies (Management and Administration) Rules,
2014 requires that every register maintained under section 88(1) of the Act, shall include an index of the names
Ǥ
Every register maintained under sub-section (1) of section 88 of the Act, shall include an index of the names entered
ǡ ǡ ϐ
Ǥ
ǡ ǡͷͲǤ
The company shall make the necessary entries in the index simultaneously with the entry for allotment or transfer
Ǥ
Inspection must be allowed of the Index in the s Ǥ
SectͻͶ ǡʹͲͳ͵ϐ ǯ Ǥ
Ǥ
According to Section 94(1), the registers required to be kept and maintained by a company under section 88 and
ϐ ͻʹϐ ǣ
Such registers or copies of return may also be kept at any other place in India in which more than one-tenth of the
total number of members entered in the register of members reside, if approved by a special resolution passed at a
Ǥ
According to section 94(2) read with Rule 14 of the Companies (Management & Administration) Rules, 2014 the
registers and their indices, except when they are closed under the provisions of this Act, and the copies of all the
ǡǦǡ ϐ ǡ
during business hours without payment of any fees and by any other person on payment of such fees as may be
ϐ ǤͷͲ Ǥ
138 Lesson 3 • EP-CL
Such particulars of the register or index or return as may be prescribed shall not be available for inspection under
ͻͶȋʹȌ ͻͶȋ͵ȌǤ
Rule 14 of the Companies (Management and Administration) Rules, 2014 provides that the registers and indices
maintained pursuant to section 88 and copies of returns prepared pursuant to section 92 of the Act, shall be open
for inspection during business hours, at such reasonable time on every working day as the board may decide, by any
ǡ ǡ ϐ
ϐ
ǤͷͲ Ǥ
Explanation: For the purposes of this sub-rule, reasonable time of not less than two hours on every working day
Ǥ
ǡǡ ϐ
person may require a copy of any such register or entries therein or return on payment of such fee as may be
ϐ Ǥ
Ǥ
Rule 16 of the Companies (Management and Administration) Rule, 2014 provides copies of the registers maintained
ͺͺϐ ͻʹǡ
Ǧǡ ϐ
ϐ
and such copy shall be supplied by the company within a period of seven days from the date of deposit of fee to the
Ǥ
According to Section 94(4), if any inspection or the making of any extract or copy required under this section is
ǡ ϐ ǡ ǡ
penalty of 1000 rupees for every day subject to a maximum of 1 lakh rupees during which the refusal or default
Ǥ
Further section 94(5) provides that “the Central Government may also, by order, direct an immediate inspection of
ǡ Ǥdz
Register An evidence
Section 95 of the Companies Act, 2013 provides
that the registers, their indices and copies of In Re. M.F.R.D. Cruz, A.I.R. 1939 Madras 803, the plaintiff
annual returns maintained under sections 88 and applied for 4,000 shares in a company but no allotment was
94 shall be prima facie evidence of any matter ǤͶǡͲͲͲ
directed or authorised to be inserted therein by him without his request and his name was entered in the
Ǥ Ǥ
ϐ Ǥ
A register of members is prima facie evidence of Ǥ
Ǥ ǡǯ The Court held “when a person knows that his name is
name, to his knowledge, is there in the register of included in the register of shareholders and he stands by
members of a company, he shall be deemed to be and allows his name to remain, he is holding out to the public
a member and onus lies on him to prove that he is that he is a shareholder and thereby he loses his right to
Ǥ dzǤ
Lesson 3 • Members and Shareholders 139
ϐ ϐ ǡ
ϐ ͷͻ
ǡ Ǥ
Section 88(4) of the Companies Act, 2013 empowers companies to keep foreign registers of members or debenture-
ǡ ϐ Ǥ ǣ
“A company may, if so authorised by its articles, keep in any country outside India, in such manner as may be
ǡǦ ȋͳȌǡ Dzdz
ǡǦǡ ϐ Ǥdz
A foreign register is deemed to be a part of the company’s principal register and it should be kept in the same
Ǥ
A company may discontinue a foreign register at any time but all the entries made in it must be transferred to the
Ǥ
The decision of a competent Court in the State or Country in which a foreign register is kept, with regard to its
ϐ ǡ ǡ ǡ
ϐ ϔ , so directs.
ǡ͵Ͳǡϐ
ϐ Ǥ Ǥ͵along with the fee where such register is kept; and in the event of
ϐ ǡǡ͵Ͳ
ǡ ǡ ϐ Ǥ Ǥ͵ with the Registrar of such change or
Ǥ
A foreign register shall be deemed to be part of the company’s register (hereafter in this rule referred to as the
Dz dzȌ ϐ ǡ
Ǥ
Ǥ
A foreign register shall be open to inspection and may be closed, and extracts may be taken there from and copies
thereof may be required, in the same manner, mutatis mutandis, as is applicable to the principal register, except that
the advertisement before closing the register shall be inserted in at least two newspapers circulating in the place
Ǥ
If a foreign register is kept by a company in any country outside India, the decision of the appropriate competent
ϐ Ǥ
Entries in the foreign register maintained under sub-section (4) of section 88 shall be made simultaneously after
ǡ
ǡ Ǥ
140 Lesson 3 • EP-CL
In a decided case law it was held that the provisions contained in Section 154 of the Companies Act, 1956
ȋ ͻͳ ǡ ʹͲͳ͵Ȍ Ǥ
application only when a company desires to close its register of members and in such a situation, the requirements
Ǥ[Talyar Tea Co. ǤUnion of India, (1991) 71 Com Cases 95].
The power in this section is intended for the convenience of the company in order to enable the register of members
ǡ Ǥ ǡ
members is closed, the company is obliged to make certain entries during the period of closure, such as entries
relating to registration and probates and letters of administration, notices of change of name and address and court
ǡ ǡ ǤȏKillick Nixon Ltd. ǤDhanraj Mill Pvt. Ltd., (1983) 54 Com Cases 432 (DB) (Bom)].
ȀǤ
Ǥ ϐ
ǦǤ
ϐ Ǥ
Further Rule 10 of the Companies (Management and Administration) Rules, 2014 in relation to Closure of register
of members or debenture holders or other security holders provides that a company closing the register of members
or the register of debenture holders or the register of other security holders shall give at least seven days previous
notice and in such manner, as m ϐ ȋ Ȍǡ
a listed company or intends to get its securities listed, by advertisement at least once in a vernacular newspaper in
the principal vernacular language of the district and having a wide circulation in the place where the registered
ϐ ǡ
Lesson 3 • Members and Shareholders 141
Section 89(1) of the Companies Act, 2013 read with the Companies (Management and Administration) Rules, 2014
makes it obligatory on the part of a person, whose name is entered in the register of members of a company as the
ϐ ǡ
ϐ
ͺͻȋʹȌ ǡǡ ϐ
a company to make a declaration to the company specifying the nature of his interest, the particulars of the person
in whose name the shares stand registered in the books of the company and such other particulars as may be
Ǥ
ͺͻȋ͵Ȍ ǡ ϐ ǡ
Ǧ ȋͳȌϐ ϐǦ ȋʹȌ ͺͻ ǡ
make a declaration within thirty days, from the date of such change to the company in the prescribed Form
Ǥ
Section 89(4) of the Act, states that the Central Government may make rules to provide for the manner of holding
ϐ ϐ Ǥ
Section 89(5) of the Act, provides that if any person fails to make a declaration as required under sub-section (1) or
Ǧ ȋʹȌǦ ȋ͵Ȍ ͺͻǡϐ
ǡ ϐ
ǡ ϐǤ
142 Lesson 3 • EP-CL
Section 89(6) of the Act, makes it obligatory on the part of the company to make a note of such a declaration in the
ϐ ǡ
Companies, a return in the prescribed form with regard to such a declaration with such fees or additional fees as
Ǥ
Section 89(8) of the Act, says no right in relation to any share in respect of which a declaration is required to be
ϐ ǡ
Ǥ
Section 89(9) of the Act, says that nothing in this section shall be deemed to prejudice the obligation of a company
ǡ ǡ Ǥ
Provided that where any change occurs in the beneficial interest in such shares, the beneficial owner shall,
within a period of thirty days from the date of such change, make a declaration of such change to the
company in Ǥ ͷǤ
Lesson 3 • Members and Shareholders 143
(3) Where any declaration under section 89 of the Act, is received by the company, the company shall make a
note of such declaration in the register of members and shall file, within a period of 30 days from the date
of receipt of declaration by it, a return in Ǥ Ǥ with the Registrar in respect of such declaration
Ǥ
Provided that nothing contained in this rule shall apply in relation to a trust which is created, to set up a
Ǥ
ȑ ͻͲ Ȁ
ȍ ȎǡʹͲͳͺȒ
Section 90(1) of the Act provides that every individual, who acting alone or together, or through one or more persons
ǡ ǡϐ ǡʹͷΨ
other percentage as may be prescribed, in shares of a company or the right to exercise, or the actual exercising of
ϐ ϐ ϐ ȋʹȌ ʹ ǡ ȋ
Dzϐ ϐ dzȌǡ ǡ
ǡ ϐ
ǡ Ǥ
Provided the Central Government may prescribe a class or classes of persons who shall not be required to make
Ǥ
ʹ ȋϐ ϐ Ȍ ǡ ʹͲͳͺ
ȋϐ ϐ ȌǡʹͲͳͻ
ϐ d in Section 90(1) of the Companies Act, 2013 the Government is empowered to
ϐ ϐ Ǥ ǡ
ʹȋϐ ϐ ȌǡʹͲͳͺȋϐ
ϐ ȌǡʹͲͳͻϐǣǦ
Dzϐ ϐ dzin relation to a reporting company means an individual referred to in sub-section
(1) of section 90,who acting alone or together ,or through one or more persons or trust, possesses one or more of
the following rights or entitlements in such reporting company, namely:
(i) holds indirectly, or together with any direct holdings, not less than 10% of the shares;
(ii) holds indirectly, or together with any direct holdings, not less than 10% of the voting rights in the shares;
(iii) has right to receive or participate in not less than 10% of the total distributable dividend, or any other
ǡϐ ǡ Ǣ
ȋȌ ǡ ǡϐ ϐ ǡ
Ǥ
144 Lesson 3 • EP-CL
Ȍ : If an individual does not hold any right or entitlement indirectly under sub-clauses (i), (ii) or
ȋȌǡ ϐ ϐ Ǥ
Ȍ ǣ
ǡ
ϐ ǡǣ
(i) the shares in the reporting company representing such right or entitlement are held in the name of the
individual;
ȋȌ ϐ
ͺͻȋʹȌǡ Ǥ
Ȍ ǣ
An individual shall be considered to hold a right or entitlement indirectly in the reporting company,
ϐ ǡ ǡǣ
Lesson 3 • Members and Shareholders 145
(i) Where the member of the reporting company is a body corporate (whether incorporated or
registered in India or abroad), other than a limited liability partnership, and the individual,-
a) holds majority stake in that member; or
Corporate b) holds majority stake in the ultimate holding company (whether incorporated or
Member ȌǤ
(ii) ȋ Ȍ
ȋȌǡ Ǥ
Member
(iii) Where the member of the reporting company is a Partnership Entity (through itself or a
partner), and the individual,-
(a) is a partner; or
(b) holds majority stake in the body corporate which is a partner of the partnership entity;
or
Member (c) holds majority stake in the ultimate holding company of the body corporate which is a
Ǥ
(iv) Where the member of the reporting company is a trust (through trustee), and the individual,-
(a) is a trustee in case of a discretionary trust or a charitable trust;
Trust ȋȌϐ ϐ Ǣ
Member ȋ Ȍ Ǥ
• Shares: For the purpose of the aforesaid clause meaning of "Shares" is given by Explnation VI as under:
ʹȋȌǡ ͳͲΨϐ
shares, Shares includes instrument in form of:
» Global Depository Receipts,
» Compulsorily Convertible Preference Shares, or
» Ǥ
• Reporting Company ǦʹȋȌǡʹͲͳͺǡ ϐ
in clause (20) of section 2 of the Companies Act, 2013 required to comply with the requirements of section 90
of the Companies Act, 2013
• ϐ ǡͳͻ͵ʹȋͻͳǡͻ͵ʹȌ
or a limited liability partnership registered under the Limited Liability Partnership Act, 2008
• ns;-
(i) holding more than one-half of the equity share capital in the body corporate; or
(ii) holding more than one-half of the voting rights in the body corporate; or
(iii) having the right to receive or participate in more than one-half of the distributable dividend or any
Ǥ
• ϐ ϐ ǡ ǡ ϐ
policy decisions of the reporting company but is not control or joint Ǥ
declaration in Ǥ Ǧͳ ǤǤǡ
ͲͺǡʹͲͳͻǤ
Continual Disclosure: ǡ Ȁ ϐ ϐ
ϐ ǤǦͳ to the reporting company, within 30
ϐ ϐ Ǥ
ϐ ϐ
ϐ ϐ ǡ
ϐ ǤǦʹ with the Registrar in respect of such declaration, within a
͵Ͳ ǡ Ǥ
ϐ ϐ
ǡǦ ϐ ϐ ǡ
obligation of the company to send notice seeking information from members in terms of Rule 2A of the Companies
ȋϐ ϐ ȌǡʹͲͳͺǡǤ
ʹȋͳȌȋϐ ϐ ȌǡʹͲͳͺǡ
ϐϐ ϐ ǡϐʹȋȌ
ȋϐ ϐ Ȍ ǡ ʹͲͳͺǡ ǡ ǡ
identify him and cause such individual to make a declaration in ǤǦͳǤ
ǡ ͻͲȋͷȌ ǡ ǡ
ȋ Ȍ Ǧ
ȋȌϐ ϐ Ǣ ʹȋʹȌǡ
ȋȌ ϐ reporting company has members (other than
ϐ individual) holding 10% or more of
knowledge; or participating interest [either of shares,
voting rights, or right to receive or participate
ȋ Ȍϐ ϐ in the dividend or any other distribution
any time during the three years immediately preceding the date ϐ Ȑǡ
on which the notice is issued, and who is not registered as a to such member seeking information in
ϐ ϐ accordance with Section 90(5) about the
Ǥ ϐ ϐ
The abovementioned particulars should be submitted in writing owner in the reporting company in
to the registered address of the company by concerned person ǦͶǤ
͵Ͳ Ǥ
Ǧ ͻͲȋͷȌ
ȋϐ ϐ ȌǡʹͲͳͺǡ
ͳͷ ϐǦͶǡ
ȋȌ ǤǦͶǡ ϐ
therein; or
(ii) where the information given is not satisfactory,
in accordance with section 90(7) of the Companies Act, 2013, for order directing that the shares in question be
subject to restrictions, including:
(a) restrictions on the transfer of interest attached to the shares in question;
(b) suspension of the right to receive dividend or any other distribution in relation to the shares in question;
(c) suspension of voting rights in relation to the shares in question;
148 Lesson 3 • EP-CL
The register shall be open for inspection during business hours, at such reasonable time of not less than two hours,
on every working day as the board may decide, by any member of the company on payment of such fee as may be
ϐ ϐ Ǥ
Ǧ
ͺȋϐ ϐ ȌǡʹͲͳͺ
extent the share of the reporting company is held by:
» IEPF Authority
» It’s holding reporting company; however, the details of such holding reporting company shall be reported in
ǤǦʹ
» The Central Government, State Government or any local Authority
» Reporting co; or a body corporate; or an entity, controlled by the Central Government or by any State Government
or partially by the Central Government and partly by one or more State Governments
» ǡ ȋ Ȍǡ
ȋ Ȍǡ ȋ Ȍ
» ǡ ǡ Ǥ
Lesson 3 • Members and Shareholders 149
Section
Section 90(10) Failure to make a ǤͷͲǡͲͲͲ
declaration in case of continuing
failure, with a further
ǤͳͲͲͲ
ϐ
during which such failure
continues, subject to a
Ǥʹ
Section 90(11) Failure to maintain • Company • liable to a penalty of
Ȁ ͻͲȋʹȌ Ƭ ϐ Ǥͳ
Ȁ ͻͲȋͶȌ of continuing failure,
required to take necessary with a further penalty
steps under sub-section ǤͷͲͲ ǡ
90(4A) and denial of ϐ
inspection which such failure
continues, subject to a
Ǥͷ
Lakhs
• ϐ • ǤʹͷͲͲͲ
who is in default and in case of
continuing failure,
with a further penalty
ǤʹͲͲ ǡ
ϐ
which such failure
continues, subject to a
Ǥͳ
Ǥ
Section 90(12) Furnishing of false and Person declaring Liable to action under
incorrect information or ϐ Section 447 of the
suppressing any material Companies Act, 2013
information (Fraud)
This may happen where a person has transferred his shares according to
law and the company either refuses or delays registration of transfer in It is pertinent to note that though
ǯǤ ϐ
ϐ
ǡ ϐ ϐ
of register of members either dismiss the appeal or direct that the transfer the Act, the provisions of Article 137
or transmission shall be registered by the company within ten days of the of the Limitation Act would apply
ϐ and in consequence, the application
or the register and in the latter case also direct the company to pay ϐ
ǡǤ within three years from the date on
The provisions of this section shall not restrict the right of a holder of ȏǤ Anil
securities, to transfer such securities and any person acquiring such Gupta v. Delhi Cloth & General Mills
securities shall be entitled to voting rights unless the voting rights have Co. Ltd., (1983) 54 Com Cases 301
ȏ ͷͻȋ͵ȌȐǤ ȋȌȐǤ
Where the transfer of securities is in contravention of any of the provisions of the Securities Contracts (Regulation)
ǡͳͻͷǡ ǡͳͻͻʹ
force, the Tribunal may, on an application made by the depository, company, depository participant, the holder of
ǡ
Ǥȏ ͷͻȋͶȌȐ
(Note: Students may also refer lesson 2 - Share & Share Capital in this context.)
When once a person becomes a member he is entitled to exercise all the rights of a member until he ceases to
Ǥ ǡ
shares, the pledge of the shares or taking over of the management of a company which is holding shares in
Ǥ ǯ
member, even if he has sold the share and has given the share certificates and the blank transfer deed duly
signed, he alone is entitled to exercise the rights of membership [Balakrishna Gupta & Others Ǥ Swadeshi
Polytex Ltd. and Others (1985) 58 Com Cases 563 (S.C.); and Life Insurance Corporation of India ǤEscorts Ltd. &
Others (1986) 59 Com Cases 548 (S.C.)]. These rights are derived by virtue of the membership contract between
Ǥ
and others along with other members unless member himself holds shares equivalent to the minimum holding
ǡʹͲͳ͵Ǥ
Individual Rights
ǡ Ǥ
Ǥ
These rights can be categorized as under:
(1) Right to receive copies of the following documents from the company:
ȋȌ ϐ ǡ ϐ ǡǡǯ
ϐ
(Section 136);
ȋȌ ϐ ǯ ȋ ͳ͵ȌǢ
(iii) Report of the Cost Auditor, if so directed by the Government;
ȋȌ ȋ ͳͲͳǦͳͲʹȌǤ
(2) Right to inspect statutory registers/returns and get copies thereof without payment on any fee or on payment
of prescribed fee
Ǥǣ
Lesson 3 • Members and Shareholders 151
ͶͺȋʹȌ ǡʹͲͳ͵ Ǥ
section 48(2), where the rights of any class of shares are varied, the holders of not less than ten per cent of the
issued shares of that class, being persons who did not consent to such variation or vote in favour of the special
ǡ Ǥ
ǡ ϐǤ
The above application shall be made within twenty-one days after the date on which the consent was given or the
resolution was passed, as the case may be, and may be made on behalf of the shareholders entitled to make the
Ǥ
Nomination by Security holders (including members) (Section 72)
Section 72(1) of the Act, states that every holder of securities of a company may, at any time, nominate, in the
prescribed manner, any person to w Ǥ
Section 72(2) of the Act, states that when the securities of a company are held by more than one person jointly, the
joint holders may together nominate, in the prescribed manner, any person to whom all the rights in the securities
Ǥ
Section 72(3) of the Act, states that notwithstanding anything contained in any other law for the time being in force
or in any disposition, whether testamentary or otherwise, in respect of the securities of a company, where a
nomination made in the prescribed manner purports to confer on any person the right to vest the securities of the
company, the nominee shall, on the death of the holder of securities or, as the case may be, on the death of the joint
holders, become entitled to all the rights in the securities, of the holder or, as the case may be, of all the joint holders,
in relation to such securities, to the exclusion of all other persons, unless the nomination is varied or cancelled in
Ǥ
Section 72(4) of the Act, states that when the nominee is a minor, it shall be lawful for the holder of the securities,
making the nomination to appoint, in the prescribed manner, any person to become entitled to the securities of the
ǡǤ
ͳͻȋȌǡʹͲͳͶ Ǥ
It provides that:-
(1) Any holder of securities of a company may, at any time, nominate, in Ǥ Ǥͳ͵ǡ any person as his
Ǥ
ȋʹȌ ǡ
ǡ ͺͺ Ǥ
(3) Where the nomination is made in respect of the securities held by more than one person jointly, all joint
holders shall together nominate in Ǥ Ǥͳ͵Ǥ
(4) The request for nomination should be recorded by the Company within a period of two months from the date
ϐǤ
(5) In the event of death of the holder of securities or where the securities are held by more than one person
jointly, in the event of death of all the joint holders, the person nominated as the nominee may upon the
ǡ ǡǦ
(a) to register himself as holder of the securities; or
ȋȌ ǡ Ǥ
(6) If the person being a nominee, so becoming entitled, elects to be registered as holder of the securities himself,
he shall deliver or send to the company a notice in writing signed by him stating that he so elects and such
ϐ ȋȌǤ
(7) All the limitations, restrictions and provisions of the Act relating to the right to transfer and the registration
of transfers of securities shall be applicable to any such notice or transfer as aforesaid as if the death of the
154 Lesson 3 • EP-CL
share or debenture holder had not occurred and the notice or transfer were a transfer signed by that
ǡ Ǥ
(8) A person, being a nominee, becoming entitled to any securities by reason of the death of the holder shall be
entitled to the same dividends or interests and other advantages to which he would have been entitled to if
he were the registered holder of the securities except that he shall not, before being registered as a holder in
respect of such securities, be entitled in respect of these securities to exercise any right conferred by the
Ǥ
ǡǡ
ǡ ǡ
withhold payment of all dividends or interests, bonuses or other moneys payable in respect of the securities,
ǡ Ǥ
(9) A nomination may be cancelled, or varied by nominating any other person in place of the present nominee,
by the holder of securities who has made the nomination, by giving a notice of such cancellation or variation,
to the company in Ǥ ǤͳͶǤ
(10) The cancellation or variation shall take effect from the date on which the notice of such variation or
Ǥ
(11) When the nominee is a minor, the holder of the securities, making the nomination, may appoint a person in
Ǥ Ǥͳ͵ ϐǦȋͳȌǡ ǡ
Ǥ
The liability of a member dep Ǥ ǡ
Ǥ
Where the company is limited by guarantee, each member will be bound to contribute in the event of winding up a
ϐ Ǥ ǡ
Ǥ
value of the shares is paid, the company goes into liquidation, the member becomes liable as contributory to pay the
ǡ Ǥ
Where a company has been incorporated by furnishing any false or incorrect information or representation or by
ϐ
ǡǡ ǡϐ
ǡ ȏ ȋȌ ȐǤ
If a member ceased to be member of a company within one year prior to the commencement of the winding up of
the company he is liable to pay on the shares which he held to the extent of the amount unpaid thereon, if:
(i) on the winding up, debts exist which were incurred while he was a member, and
(ii) it appears to the Tribunal that the present members are not able to satisfy the contribution required from
Ǥ
A person is liable as member inspite of a valid transfer of shares by him, if the name of the transferee is not placed
ǡ ǯǤ ϐ
person or a person not in existence or uses another person’s name for himself, or uses an alias, and shares are
ǡǤ
ǯ
Shareholder’s rights are determined by the Companies Act, Memorandum of association, Articles of association of
Ǥ Dz dzǤ
ǯǡǯ Ǥ
ϐ ϐ Ǥ
shareholders are conferred the right to participate in the surplus assets on winding up of a company, it is not
Lesson 3 • Members and Shareholders 155
However, if variation by one class of shareholders affects the rights of any other class of shareholders, the consent
of three-fourths of such other class of shareholders shall also be obtained and the provisions of this section shall
Ǥ
ǯ
The concept of shareholders’ democracy in the present day corporate world denotes the shareholders’ supremacy in
the governance of the bu Ǥ
ǡǤ
means the rule of shareholders, by the shareholders, and for the shareholders in the corporate enterprise, to which
Ǥ ǡ ǡ Ǧ
Ǥ
ǣ
Ǥ
Ǥ
Ǥ
Ǥ
ͳͻ ʹͲͳ͵ Ǥ
Dz ǡ
ǡ Ǥdz
ϐ
be done by shareholders in the General Meetings under the provisions of Companies Act or Memorandum of
Ǥ
Ǥ
Ǥ
ͳǤ Ǥ
ʹǤ Ǥ
͵Ǥ
Ǥ
ͶǤ Ǥ
ͷǤ ϐ ǡ
ϐ Ǥ
Ǥ ϐ ǡ
Ǥ
156 Lesson 3 • EP-CL
ȂDzdz
ȂDzI forbiddzȂϐ ǡ Ǥ
A veto may give power only to stop changes, thus allowing its holder to protect the status quoǤ
The Companies Act, 2013 introduced various provisions to essentially bridge the gap towards protection and
ǡͳͻͷǤ ǡͳͻͷǡ
ǡ Ǥ Foss Ǥ
Harbottle ȋͳͺͶ͵ȌǤ Ǥ
ǡʹͲͳ͵Ǥ
Ǥ
ǤǤ
As per the provisions of the Companies Act, 2013 there are some resemblance where the management can take
ǡǤ ǡ
is mandatory to approve any decision or transaction which is said to be as the veto power or veto right of shareholders
Ǥ
For instance in case of related-party transactions, promoters, who are majority shareholders, cannot vote in
resolutions in cases of related-party transactions (however a company in which ninety percent or more members
in number are relatives of promoters or are related parties can vote in resolutions in cases of related-party
ȌǤ
158 Lesson 3 • EP-CL
As stated under the provisions of Section 188 any related-party transaction that is not done in the ordinary course
ǯǤ
Ǥ
Ǥ
Ǥϐ Ǥ ǡ
ǣDzǢ ϐ ǣȋȌ
Ǥdz
Shareholders Agreement and Articles of Association of a company may provide for certain rights to the minority
Ǥ
ϐǤ
proposed by the company, he can exercise his right under the Articles which in common terminology is referred to
DzdzǤ
Ǯǯ
The introduction of the concept of ̵ ̵ ʹͲͳ͵ Ǥ
ʹͲͳ͵ ǡǮ ǯ ǣ
(i) appoint a majority of directors; or
(ii) control the management or policy decisions exercisable by a person or persons acting individually or in
concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholding
ǡǤ
ͳʹǤ e entitled to interest at the rate of 12% per annum on the sums brought in by him or his Associates/
ȀǤ
ͳ͵Ǥ
ϐǡ
of each other or of the Company or of their clients or customers, that may have been disclosed, imparted to
Ǥ
ͳͶǤ ǣǦ
(a) that they shall ensure that they, their representatives, proxies and agents representing them at general
meetings of the shareholders of the Company shall at all times exercise their votes in such manner so
ǡ ǡǤ
(b) that if any resolution is proposed contrary to the terms of this Agreement, the parties, their
ǡǤ
resolution is passed, the parties will, if necessary, join together and convene an extraordinary, general
meeting of the Company in pursuance of section 100 of the Companies Act, 2013 for implementing the
Ǥ
ͳͷǤ Ȁ
board of the Company shall at all times fully and effectually implement and comply with (including by exercise
ȌǤ
ͳǤ
rectify such breach within Sixty (60) days from the receipt of written notice from the party complaining of the
breach, then the latter shall be entitled, without prejudice to its other rights and remedies under this
ǡ Ǥ
ͳǤ ϐ
ȀǤ
ͳͺǤ
Ǥ
ͳͻǤ ǡ
contained herein on as to their respective rights, claims, duties or liabilities hereunder or otherwise,
howsoever in relation to or arising out of or concerning this Agreement, such dispute or difference shall be
Ǥ
Ǥ
ǡͳͻͻǤ
ʹͲǤ
and cancels and supersedes all prior agreements, arrangements or understandings, if any, whether oral or in
ǡ Ǥ
ǤƬǤ
162 Lesson 3 • EP-CL
Ǧ
A person ceases to be a member of a company when his name is removed from its
membership Ǥ
Joint Members If more than one person apply for shares in a company and shares are allotted to
ǡ Ǥ
Class Rights Dzdz
Veto ȋ Dz dzȌǡ ϐ ,
Ǥ ǡ
where the consent of the shareholders is mandatory to approve any decisions or
transaction which is said to be as the veto power or veto right of shareholders of
Ǥ
Insolvent Ǥ
ǡǤ
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation.)
ͳǤ
ǤǤ
ʹǤ ǫ
a company:
ȋȌ ǢȋȌǢȋ ȌϐǢȋȌ ǢȋȌ Ǥ
(b) Is the subscriber to the memorandum of the company would be termed as member of the company?
͵Ǥ ϐǫ
ǡʹͲͳ͵Ǥ
ͶǤ ǫ
be maintained and who has to maintain it? Can a member have access to the register?
ͷǤ Ǥ
Ǥ
Ǥ ǫ
Ǥ
ϐ ǫ
Ǥ ϐ ϐ ǫ
ϐ ϐ ǫ
ͺǤ ǫ
ͻǤ Dz dz ǫ
reasoning
ͳͲǤ ǣ
(a) Cessation of membership of a company;
(b) Foreign Register;
(c) Index of members;
(d) Variation of members’ rights;
Lesson 3 • Members and Shareholders 165
Lesson Outline
• Borrowing Powers of company
• Ultra Vires and Intra Vires Borrowings
• Instruments for Corporate Funding-Debt Capital
• Debentures
• Kinds of Debentures
• Debenture Redemption Reserve Account
• Debenture Redemption Fund
• Debenture Trustee
• Overview of Acceptance of Deposit by Company
• ǧ
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
168 Lesson 4 • EP-CL
Regulatory Framework
The Companies Act, 2013
Section Deals with
Section 2(30) ϐ
Section 71 Debentures
Rule 18 of the Companies (Share Capital & Debentures) Rules, 2014-Debentures
Section 73 Prohibition on Acceptance of Deposits from Public
Section 74 Repayment of Deposits, etc., Accepted Before Commencement of this Act
Section 75 Damages for Fraud
Section 76 Acceptance of Deposits from Public by Certain Companies
Section 76A Punishment for Contravention of Section 73 or Section 76.
Rule 2-21 of The Companies (Acceptance of Deposit) Rules, 2014
The SEBI (LODR) Regulations, 2015
The SEBI (Issue and Listing of Debt Securities) Regulations, 2008
The SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018
PART A
BORROWING POWERS OF THE COMPANY AND DEBT CAPITAL
BORROWING
In order to run a business effectively and successfully, adequate amount of capital is necessary. In some cases capital
ǤǤ ϐ
is not adequate and the organisation is resorted to external resources of arranging capital i.e. Bank Loan, Term
Loan, Working Capital Loan, Overdraft facility from Bank, Debentures, Public Fixed Deposits, External Commercial
borrowing (ECB) etc. Thus, borrowing is a mechanism used whereby the money is arranged through external
resources with an implied or expressed intention of returning money.
Governing Framework
• Issue of debt securities that are convertible, either partially or fully or optionally into listed or unlisted equity
shall be governed by the disclosure norms applicable to equity or other instruments offered on conversion in
terms of SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018.
• SEBI issued (Issue and Listing of Debt Securities) Regulations, 2008 pertaining to issue and listing of debt
securities which are not convertible, either in whole or part into equity instruments. They provide for a
rationalized disclosure requirements and a reduction of certain onerous obligations attached to an issue of
debt securities.
» These Regulations are applicable to –
» public issue of debt securities; and
» listing of debt securities issued through public issue or on private placement basis on a recognized stock
exchange.
• Securitised debt instruments are regulated by the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002, SEBI (Issue and Listing of Securitised Debt Instruments and
Security Receipts) Regulations, 2008 for listing of securitised debt instruments issued to public or any
person(s), on a recognised stock exchanges and the Securitization Companies and Reconstruction Companies
(Reserve Bank) Guidelines and Directions, 2003.
• The Provisions of Chapter V of SEBI (LODR) Regulations, 2015 shall apply only to a listed entity which has
listed its ‘Non-Convertible Debt Securities’ and/or ‘Non-Convertible Redeemable Preference Shares’ on a
recognised stock exchange in accordance with SEBI (Issue and Listing of Debt Securities) Regulations, 2008 or
SEBI (Issue and Listing of Non-Convertible Redeemable Preference Shares) Regulations, 2013 respectively.
The provisions of this chapter shall also be applicable to “perpetual debt instrument” and “perpetual non-
cumulative preference share” listed by banks.
• RBI has issued the guidelines for issuance of debentures through issuance of (i) Non-Convertible Debentures
(Reserve Bank) Directions, 2010 dated June 23, 2010 (for issuance of Non-Convertible Debentures (NCDs) of
original or initial maturity up to one year) (ii) Raising money through private placement of Non-Convertible
Debentures (NCDs) by NBFCs dated February 20, 2015 (for issuance of NCDs with maturity of more than one
year) and (iii) Raising Money through Private Placement by NBFCs-Debentures dated June 27, 2013.
• Section 71 of the Companies Act, 2013 prescribes the conditions for issue of debentures. The companies are
required to comply with section 71 (Debentures) read with Rule 18 of the Companies (Share Capital and
Debentures) Rules, 2014.
The power to borrow monies can, be delegated by a resolution passed at a duly convened meeting of the directors
ǡ ǡ ϐ Ǥ ǡ
resolution must specify the total amount up to which the monies may be borrowed by the delegates. Often the
power of the company to borrow is unrestricted, but the authority of the Directors acting as its agents is limited to
a certain extent. For example, Section 180(1)(c) of the Act prohibits the Board of Directors of a company from
borrowing a sum which together with the monies already borrowed exceeds the aggregate of the paid-up share
capital of the company, its free reserves and securities premium apart from temporary loans obtained from the
company’s bankers in the ordinary course of business unless they have received the prior sanction of the company
by a special resolution in general meeting.
170 Lesson 4 • EP-CL
Explanation to section 180(1)(c) provides that the expression “temporary loans” means loans repayable on demand
or within six months from the date of the loan such as short-term, cash credit arrangements, the discounting of bills
and the issue of other short-term loans of a seasonal character, but does not include loans raised for the purpose of
ϐ Ǥ
It is further provided in proviso to Section 180(1)(c) that the acceptance by a banking company, in the ordinary
course of its business, of deposits of money from the public, repayable on demand or otherwise, and withdrawable
by cheque, draft, order or otherwise, shall not be deemed to be borrowing of monies by the banking company
within the meaning of clause (c) of Sub-section (1) of Section 180. It is important at this stage to distinguish between,
borrowing which is ultra vires the company and borrowing which is intra vires the company but outside the scope
of the director’s authority.
Ǧ ȋͷȌ ͳͺͲ ϐ
Section 180(1)(c) shall not be valid unless the lender proves that he lent his money in good faith and without
knowledge of the limit imposed by Sub-section (1) being exceeded.
ϐ ǣ
ϐ ͶͶȋȌͷth June, 2015 private companies have been exempted to
comply the entire provisions of Section 180 of the Companies Act 2013, resultantly special resolution is not
required to exercise powers under section 180 for private companies.
Where the borrowing is intra vires of the company but outside the authority of the directors e.g. where the articles
provide that the directors shall have the power only up to Rs. 100 lakhs and prior approval of the shareholders
would be required to borrow beyond Rs. 100 lakhs; any borrowing beyond Rs.100 lakhs without shareholders
approval i.e. intra vires ϐ
company, then it becomes binding on the company. The company would be liable, particularly if the money has been
ϐ Ǥ Ǥ
borrow, but the authority of the directors is restricted either by the articles of the company or by the statute, and
they have exceeded it. The company may, if it wishes, ratify the agent’s act in which case the loan binds the company
ǯϐ Ǥ
On the other hand, the company may refuse to ratify the agent’s act. Here the normal principles of agency apply. The
doctrine of Indoor Management (also known as rule in Royal British Bank v. Turquand (1856) CI & B 327) shall
protect the lender, provided he can establish that he advanced the money in good faith. A third-party who deals with
an agent knowing that the agent is exceeding his authority has no right of action against the principal. Bearing in mind
that the memorandum and articles are public documents, the contents of which the third-party is deemed to know,
he will obviously have no right of action against the company if the agent’s lack of authority is obvious from reading
them. But a third-party is not effected by secret restrictions on the agent’s authority, as the lack of authority is not clear
from the public documents and the lender can not be aware of it from some other source. Therefore, the company
will be liable.
Case Laws:
Related to borrowing power of a company
(a) The behaviour of the directors, as the company’s agents, can have no effect whatsoever on the validity of
the loan for no agent can have more capacity than his principal. No agent can have a power which is not
with the principal. If, therefore, the borrowing is ultra vires the company, so that the company has no
capacity to undertake it, the lender can have no rights at common law. No debt is created and any security
which may have been created in respect of the borrowing is also void. The lender cannot sue the company
for the repayment of the loan. [Sinclain v. Brouguham (1914) 88 LJ Ch 465].
(b) If the borrowing by the directors is ultra vires their powers, the directors may, in certain circumstances,
be personally liable for damages to the lender, on the ground of the implied warranty given by them, that
they had power to borrow [Firbank’s Executors vs. Humphreys, (1886) 18 QBD 54; Garrard v. James, 1925
Ch. 616].
(c) Sometimes it happens that a power to borrow exists but is restricted to a stated amount, in such a case if
by a single transaction an amount in excess is borrowed, only the excess would be ultra vires and not the
whole transaction [Deonarayan Prasad Bhadani v. Bank of Baroda, (1957) 27 Com Cases 223 (Bom)].
(d) The acquiescence of all shareholders in excess loans contracted by directors beyond their powers but not
ultra vires ϐ Ǥ [Sri Balasar
aswathi Ltd. v. Parameswara Aiyar, (1956) 26 Com Cases 298, 308: AIR 1957 Mad 122].
(e) If the borrowing is unauthorized, the company will be liable to repay, if it is shown that the money had
gone into the company’s coffers [Lakshmi Ratan Cotton Mills Co. Ltd. v. J.K. Jute Mills Co. Ltd., (1957) 27 Com
Cases 660: AIR 1957 All 311].
(f) In V.K.R.S.T Firm v. Oriental Investment Trust Ltd., AIR 1944 Mad 532 under the authority of the company,
its managing director borrowed large sums of money and misappropriated it. The company was held
liable stating that where the borrowing is within the powers of the company, the lender will not be
ϐ
had no knowledge of the intended misuse.
172 Lesson 4 • EP-CL
(g) In T.R. Pratt. (Bom) Ltd. v. E.D. Sassoon and Co. Ltd., (1936) 6 Com Cases 90, there was no limit
on the borrowing for business in the memorandum of the company. But the directors could not
borrow beyond the limit of the issued share capital of the company without the sanction of the general
meeting. The directors borrowed money from the plaintiff beyond their powers. It was held that the
ϐ ǡ
debts, or for its legitimate business, the company cannot repudiate its liability on the ground that the
agent had no authority from the company to borrow. When these facts are established a claim on the
footing of money had been received would be maintainable. It was also held that under the general
principle of law when an agent borrows money for a principal without the authority of the principal, but
ϐ
the coffers of the principal, the law implies a promise to repay. In that connection it was observed that
there appears to be nothing in law which makes this principle inapplicable in the case of a joint stock
company and even in cases where the directors or the managing agent had borrowed money without
ǡϐ ǡ
cannot repudiate its liability to pay.
(h) In Equity Insurance Co. Ltd. v. Dinshaw& Co., AIR 1940 Oudh 202, it was held that “where the managing
agent of a company who is not authorised to borrow, has borrowed money which is not necessary, neither
ϐǡϐ ǡ dzǤ
(i) In SurajBabu v. Jaitly & Co. AIR 1946 All 372, P & Co., were the managing agents of L & Co., which was in
liquidation. P the manager borrowed a sum of money from J in his own name. In one letter to J he indicated
ƬǤ ϐǤ
ǤDz ϐ
ϐ dzǤ
TYPES OF BORROWINGS
ϐ Ǥ
be categorized into: 1) Long term/Short term borrowing/Medium term borrowing 2) Secured/Unsecured
borrowing 3) Syndicated/ Bilateral borrowing 4) Private/Public borrowing.
1A Long Term Borrowing Ǧ ϐǦ
Ǥ ϐ
ǡ ǡ ϐ Ǥ
ϐ Ǥ
1B Short Term Borrowing - Funds needed to be borrowed for a short period say for a period up to one year or
so are termed as short term borrowings. This is made to meet the working capital need of the company. Short
term borrowing is generally made on hypothecation of stock and debtors.
1C Medium Term Borrowing Ǧϐǡ
Ǥ ϐ
of land, machinery, vehicles etc.
2A. Secured Borrowing - A debt obligation is considered secured, if creditors have recourse to the assets of the
company on a proprietary basis or otherwise ahead of general claims against the company.
2B Unsecured Borrowing - ϐ ǡ
of the company to satisfy their claims.
3A Syndicated borrowing - If a borrower requires a large or sophisticated borrowing facility this is commonly
provided by a group of lenders known as a syndicate under a syndicated loan agreement. The borrower uses
one agreement covering the whole group of banks and different types of facility rather than entering into a
series of separate loans, each with different terms and conditions.
3B Bilateral borrowing - Ȁϐ Ǥ
In this type of borrowing, there is a single contract between the company and the lender.
Lesson 4 • Debt Capital and Deposits 173
4A Private borrowing - Comprises bank loan type obligations whereby the company takes loan from a bank/
ϐ Ǥ
4B Public borrowing - ϐ ϐ
public exchange or over the counter, with few, if any, restrictions i.e. Debentures, Bonds etc.
ϐ
The word ‘debenture’ has been derived from a Latin word ‘debere’ which means to borrow.
According to Section 2(30) of the Companies Act, 2013, “debenture” includes debenture stock, bonds or any other
instrument of a company evidencing a debt, whether constituting a charge on the assets of the company or not.
Further it is provided that –
(a) the instruments referred to in Chapter III-D of the Reserve Bank of India Act, 1934; and
(b) such other instrument, as may be prescribed by the Central Government in consultation with the Reserve
Bank of India, issued by a company,
shall not be treated as debenture.
Kinds of Debentures
ϐ ǣ
174 Lesson 4 • EP-CL
(a) Non Convertible Debentures (NCD): These instruments retain the debt character and cannot be converted
into equity shares.
(b) Partly Convertible Debentures (PCD): A part of these instruments are converted into Equity shares in the
future at notice of the issuer. The issuer decides the ratio for conversion. This is normally decided at the time
of subscription.
(c) Fully convertible Debentures (FCD): These are fully convertible into Equity shares at the issuer’s notice.
The ratio of conversion is decided by the issuer. Upon conversion the investors enjoy the same status as
ordinary shareholders of the company.
(d) Optionally Convertible Debentures (OCD): The investor has the option to either convert these debentures
into shares at price decided by the issuer/agreed upon at the time of issue.
(a) Redeemable Debentures: It refers to the debentures which are issued with a condition that the debentures
ϐǡ ǡ Ǥ
Debentures are generally redeemable and on redemption these can be reissued or cancelled. The person who
have been re-issued the debentures shall have the same rights and priorities as if the debentures had never
been redeemed.
(b) Perpetual or Irredeemable Debentures:ǡ ϐ
back the money, is an irredeemable debenture. The debenture holder cannot demand payment as long as the
company is a going concern and does not make default in making payment of the interest. But all debentures,
whether redeemable or irredeemable become payable on the company going into liquidation. However, after
the commencement of the Companies Act, 2013, now a company cannot issue perpetual or irredeemable
debentures.
and recover the principal and the interest accrued thereon. [Calcutta Safe Deposit Co. Ltd. v. Ranjit Mathuradas
Sampat (1971) 41 Com Cases 1063]
Debenture Stock
A company, instead of issuing debentures, each in respect of separate and distinct debt, may raise one aggregate
loan fund or composite stock known as ‘debenture stock’. Accordingly, a debenture stock is a borrowed capital
consolidated into one mass for the sake of convenience. Instead of each lender having a separate bond or mortgage,
ϐ Ǥ
deed. As in the case of shares, a person may subscribe for, or transfer any amount even a fraction amount. Debenture
ǡ ϐ
holder in the indebtedness. Debenture is the document which furnishes evidence of the debt. Debenture stock must
be fully paid, while debenture may or may not be fully paid.
4 Debentures generally have a charge on the Shares do not carry any such charge.
assets of the company.
5 Debentures can be issued at a discount without Shares cannot be issued at a discount.
restrictions.
6 ϐ Whereas on equity shares the dividend varies from year
debentures. ϐ
the Board of Directors decides to declare dividends or not.
7 Debenture holders do not have any voting rights. Shareholders enjoy voting rights.
8 Interest on debenture is payable even if there Dividend can be paid to shareholders only out of the
ϐǤǤ Ǥ ϐ Ǥ
9 Interest paid on debenture is a business Dividend is not allowable deduction as business
ϐǤ expenditure.
(c) the company shall appoint a debenture trustee before the issue of prospectus or letter of offer for subscription
of its debentures and not later than sixty days after the allotment of the debentures, execute a debenture trust
deed to protect the interest of the debenture holders; and
(d) the security for the debentures by way of a charge or mortgage shall be treated in favour of the debenture
trustee on –
ȋȌ ϐ
companies or otherwise;
ȋȌ ϐ ǡǤ
ǡ Ǧϐ ǡ Ǥ
Further in case of any issue of debentures by a Government company which is fully secured by the guarantee given
by the Central Government or one or more State Government or by both, there is no requirement for creation of
charge under this sub-rule.
ϐ ǡ
may also be created on the properties or assets of the holding company.
• Appointment must be before the issue of prospectus or letter of offer for subscription of its debentures
and not later than sixty days after the allotment of the debentures, and execute a debenture trust deed
Debenture to protect the interest of debenture-holders thereon.
Trustee’s
Appointment
• ϐ
Ǣ ϐ
immovable property wherever situated or any interest therein.
• NBFCs: Charge is created on movable property.
Creation of • Government Companies: Exempted to create charge if guaranteed by Central or State Government.
Security • ϐ ǣ the charge or
mortgage may also be created on the properties or assets of the holding company.
2 Financial Institutions (FIs) within the meaning of DRR shall be as applicable to NBFCs registered
clause (72) of section 2 of the Companies Act, 2013 with RBI.
3 ͶͷǦ ǡ ͳͻ͵Ͷ ϐ
companies registered with the National Housing Bank:
3A Listed NBFCs and Housing Finance Companies No DRR required for debentures issued for
both public as well as privately placed
debentures
3B Unlisted NBFCs and Housing Finance Companies No DRR is required in case of privately placed
Debentures
4A Listed Companies No DRR required for debentures issued for
both public as well as privately placed
debentures
4B Unlisted companies Adequacy of DRR shall be 10% of the value of
outstanding debentures.
ǡ ǡϐ
percent of the amount of the debentures maturing during the year ending on 31st day of March of that year.
The amount invested or deposited as above shall not be used for any purpose other than for redemption of
debentures maturing during the year referred above.
In case of partly convertible debentures, Debenture Redemption Reserve shall be created in respect of non-
convertible portion of debenture issue in accordance with Rule 18(7) of the Companies (Share Capital and
Debentures) Rules, 2014.
trustee or trustees proposed to be appointed and a statement to that effect shall appear in the letter of offer issued
for inviting the subscription of the debentures.
ϐ ǣ
ȋȌ ϐ Ǣ
ȋȌ ǡ ϐ
holding, subsidiary or associate company;
ȋ Ȍ ϐ
payable to the debenture trustee;
(d) is indebted to the company, or its subsidiary or its holding or associate company or a subsidiary of such
holding company;
(e) has furnished any guarantee in respect of the principal debts secured by the debentures or interest thereon;
(f) has any pecuniary relationship with the company amounting to 2% or more of its gross turnover or total
ϐ ǡ ǡ
ϐ ϐ Ǣ
(g) is relative of any promoter or any person who is in the employment of the company as a director or key
managerial personnel.
(l) take steps to convene a meeting of the holders of debentures as and when such meeting is required to be held;
(m) ensure that the debentures have been converted or redeemed in accordance with the terms of the issue of
debentures;
(n) perform such acts as are necessary for the protection of the interest of the debenture holders and do all other
acts as are necessary in order to resolve the grievances of the debenture holders.
Section 71 sub-section (8) puts obligation on the company to pay interest and redeem the debentures in accordance
with the terms and conditions of their issue.
ϐ
ϐ ǡ
ϐ ǡ
interested in the matter, by order, impose such restrictions on the incurring of any further liabilities by the company
as the Tribunal may consider necessary in the interests of the debenture-holders.
Some of the obligations of Debenture Trustees provided in the Regulation 25 of SEBI (Issue and Listing of Debt
Securities) Regulations, 2008 are –
(i) The debenture trustee shall be vested with the requisite powers for protecting the interest of holders of debt
securities including a right to appoint a nominee director on the Board of the issuer in consultation with
institutional holders of such securities.
(ii) The debenture trustee shall carry out its duties and perform its functions under these regulations, the
Securities and Exchange Board of India (Debenture Trustees) Regulations,1993, the trust deed and offer
document, with due care, diligence and loyalty.
(iii) The debenture trustee shall ensure disclosure of all material events on an ongoing basis.
(iv) The debenture trustees shall supervise the implementation of the conditions regarding creation of security
for the debt securities and debenture redemption reserve.
Case Laws:
The following kinds of documents have been held to be treated as debentures:
Ȍ Ǧ ϐ[Lemon vs.
Austin Friars Investment Trust Ltd. 1926 Ch 1 (CA)];
Ȍ ϐ ȋȌ
ϐǡ[United Dominions Trust Ltd. v. Kirkwood, (1966) 2 QB 43].
Ȍ ϐ
charge on the company’s assets or not [Cf. Pearl Assurance Co. Ltd. v. West Midlands Gas Board, (1950) 2
All ER 844 (ChD)].
CASE STUDY
(Held, the Hon’ble SAT in the case of The canning Industries Cochin Ltd. (CAICO) v. SEBI dated 28.01.2020
Appeal No. 115 of 2019)
The present appeal ϐͳͺ ǡʹͲͳͻ
(WTM), Securities and Exchange Board of India (hereinafter referred to as ‘SEBI’) issuing various directions
under section 11, 11(4), 11A, 11B and 19 of the Securities and Exchange Board of India Act, 1992 (hereinafter
referred to as ‘SEBI Act’).
The contention of the appellant is, that Section 42 of the Companies Act is not applicable in the instant case and
that the issue of the share capital is under Section 62(3) of the Companies Act, 2013 which has not been
considered.
The contention of the learned senior counsel for SEBI is, that since the offer of FCDs was for more than 200
persons, the said offer is a deemed public offer and therefore part one of the Chapter 1 of the Companies Act is
required to be followed.
Judgment:
The Tribunal held that, as per Section 71(5) of the Companies Act, 2013- No company shall issue a prospectus
ϐ
debentures, unless the company has, before such issue or offer, appointed one or more debenture trustees and
the conditions governing the appointment of such trustees shall be such as may be prescribed.
A perusal of the aforesaid provision indicates that no offer can be made to its members exceeding 500 for the
subscription of its dentures unless the Company, before such offer or issue has appointed a trustee. Thus, the
restriction is that debentures could be issued to only 500 persons if there is no trustee appointed by the
Company.
However the restriction of 500 persons is done away if a trustee was appointed by the Company. In the instant
case, it is an admitted fact that a trustee was appointed. Thus there was no restriction to the number of
shareholders to whom the debentures would be issued. In the light of the aforesaid, the impugned order passed
by the Whole Time Member cannot be sustained. The interim order as well as the impugned order and the
directions so issued are all quashed. The appeal is allowed.
182 Lesson 4 • EP-CL
Non-Applicability of Rule 18 of the Companies (Share Capital and Debentures) Rules, 2014
• Nothing contained in this rule shall apply to any amount received by a company against issue of commercial
ϐ
issued by the Reserve Bank of India.
• In case of any offer of foreign currency convertible bonds or foreign curency bonds issued in accordance with
the Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism)
Scheme, 1993 or regulations or directions issued by the Reserve Bank of India, the provisions of this rule shall
not apply unless otherwise provided in such Scheme or regulations or directions.
• This rule shall not apply to rupee denominated bonds issued exclusively to overseas investors in terms of A.P.
(DIR Series) Circular No. 17 dated September 29, 2015 of the Reserve Bank of India.
Do you know?
• Which type of debentures is allowed to issue by Companies under Companies act, 2013?
• ϐ Pari Passu Clause in Debenture?
• You are a company secretary in SOP Ltd. The company has borrowed secured loans through issue of
debentures. The debenture trustee has been appointed for it by the company. The debenture trustee is
seeking your assistance for the preparation of debenture trust deed. Explain the provisions of debenture
trust deed.
• N Ltd. is an unlisted public company incorporated in India. It issued 1 crore Partially Convertible
Debenture (PCD) with a face value of Rs.100 each. Against the above issue, out of the face value of
Rs.100; 50 will be converted into one equity share after 5 years and remaining 50 will be redeemed
ϐ ǤǤϐ ʹͲͳͻǦʹͲϐ ʹͲʹͲǦʹͳ͵Ͳ
every year.
Citing the relevant provisions of the Companies Act, 2013 :
ȋȌ ϐ ʹͲͳͻǦʹͲǢ
(ii) Calculate the amount of Debenture Redemption Reserve as on 1st April, 2020.
• You have been appointed as a Debenture Trustee in respect of debentures issued by a company. How
would you protect the interests of its debenture holders?
184 Lesson 4 • EP-CL
PART B
What is Deposit?
According to the Section 2(31) of the Act read with Rule 2(1)(c) of Companies (Acceptance of Deposits) Rules, 2014,
‘deposit’ includes any receipt of money by way of deposit or loan or in any other form by a company, but does not
include –
(i) any amount received from the Central Government or a State Government, or any amount received from any
other source whose repayment is guaranteed by the Central Government or a State Government or any amount
received from a local authority, or any amount received from a statutory authority constituted under an Act of
Parliament or a State Legislature;
ȋȌ ǡ Ȁ ǡ ϐ
institutions (including, but not limited to, International Finance Corporation, Asian Development Bank,
Commonwealth Development Corporation and International Bank for Industrial and Financial
Ȍǡ ϐ ǡ
agencies, foreign collaborators, foreign bodies corporate and foreign citizens, foreign authorities or persons
resident outside India subject to the provisions of Foreign Exchange Management Act, 1999 and rules and
regulations made there under;
(iii) any amount received as a loan or facility from any banking company or from the State Bank of India or any of
ϐ ͷͳ
ǡͳͻͶͻȋͳͲͳͻͶͻȌǡ ϐ ȋȌ
2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or in clause (b)
of section (2) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980),
Ǧϐ ȋǦȌ ʹ ǡͳͻ͵Ͷȋʹ
1934);
ȋȌ ϐ ϐ
ϐ
ǡ ϐ ǡͳͻ͵ͶǢ
(v) any amount received against issue of commercial paper or any other instrument issued in accordance with
ϐ Ǣ
(vi) any amount received by a company from any other company;
(vii) any amount received and held pursuant to an offer made in accordance with the provisions of the Act towards
subscription to any securities, including share application money or advance towards allotment of securities
pending allotment, so long as such amount is appropriated only against the amount due on allotment of the
securities applied for:
(a) if the securities for which application money or advance for such securities was received cannot be
allotted within 60 days from the date of receipt of the application money or advance for such
securities and such application money or advance is not refunded to the subscribers within 15
days from the date of completion of 60 days, such amount shall be treated as a deposit under these
rules.
Lesson 4 • Debt Capital and Deposits 185
(b) any adjustment of the amount for any other purpose shall not be treated as refund.
(viii) any amount received from a person who, at the time of the receipt of the amount, was a director of the
company or a relative of the director of the Private company:
Provided that the director of the company or relative of the director of the private company, as the case may
be, from whom money is received, furnishes to the company at the time of giving the money, a declaration in
writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting
loans or deposits from others and the company shall disclose the details of money so accepted in the Board’s
report;
ȋȌ ϐ pari
passu ϐ
the company or bonds/ debentures compulsorily convertible into shares of the company within ten years. If
such bonds or debentures are secured by the charge of any assets referred to in Schedule III of the Act
excluding intangible assets, the amount of such bonds or debentures shall not exceed the market value of
such assets as assessed by a registered valuer;
(ixa) any amount raised by issue of non-convertible debenture not constituting a charge on the assets of the
company and listed on a recognised stock exchange as per applicable regulations made by Securities and
Exchange Board of India;
(x) any amount received from an employee of the company not exceeding his annual salary under a contract of
employment with the company in the nature of non-interest bearing security deposit;
(xi) any non-interest bearing amount received and held in trust;
(xii) any amount received in the course of or for the purposes of the business of the company:
(a) as an advance for the supply of goods or provision of services accounted for in any manner whatsoever
provided that such advance is appropriated against supply of goods or provision of services within a
ϐ Ǥ
In case of any advance which is subject matter of any legal proceedings before any court of law, the said
ϐǤ
(b) as advance, accounted for in any manner whatsoever, received in connection with consideration for an
immovable property under an agreement or arrangement, provided that such advance is adjusted
against such property in accordance with the terms of agreement or arrangement.
(c) as security deposit for the performance of the contract for supply of goods or provision of services.
(d) as advance received under long term projects or for supply of capital goods except those covered under
item (b) above.
(e) as an advance towards consideration for providing future services in the form of a warranty or
maintenance contract as per written agreement or arrangement, if the period for providing such
ϐǡ
date of acceptance of such service whichever is less.
(f) as an advance received and as allowed by any sectoral regulator or in accordance with directions of
Central or State Government.
(g) as an advance for subscription towards publication, whether in print or in electronic to be adjusted
against receipt of such publications.
If the amount received under (a) (b) and (d) above becomes refundable (with or without interest)
because the company accepting the money does not have necessary permission or approval to deal in
the goods or properties or services for which the money is taken, then the amount received shall be
deemed to be a Deposit under these rules.
186 Lesson 4 • EP-CL
Explanation: For the purpose of sub-clause the amount shall be deemed to be deposits on the expiry of
15 days from the date they become due for refund.
(xiii) any amount brought in by the promoters of the company by way of unsecured loan in pursuance of the
ϐ ϐ ǣǦ
(a) the loan is brought in pursuance of the stipulation imposed by the lending institutions on the
ϐ Ǣ
(b) the loan is provided by the promoters themselves or by their relatives or by both; and
ȋ Ȍ Ǧ ϐ
are repaid and not thereafter.
(xiv) any amount accepted by a Nidhi Company in accordance with the rules made under Section 406 of the Act For
the purposes of this clause, any amount -
(a) received by the company, whether in the form of instalments or otherwise, from a person with promise
ǡ ǡ ϐǡ
or earlier, accounted for in any manner whatsoever, or
(b) any additional contributions, over and above the amount under item (a) above, made by the company
ǡ ϐ
clause.
(xv) any amount received by way of subscription in respect of a chit under the Chit Fund Act, 1982;
(xvi) any amount received by the company under any collective investment scheme in compliance with regulations
framed by the Securities and Exchange Board of India;
ȋȌ ϐ Ǧ ǡ
(convertible into equity shares or repayable within a period not exceeding 10 years from the date of issue) in
a single tranche, from a person;
(xviii) any amount received by a company from Alternate Investment Funds, Domestic Venture Capital Funds,
“Infrastructure Investment Trusts”, “Real Estate Investment Trusts” and Mutual Funds registered with the
Securities and Exchange Board of India in accordance with regulations made by it.
Lesson 4 • Debt Capital and Deposits 187
Do You Know?
ϐ
company.
(a) Rs.5 Crore from Government Agency, Financial institutions, Banks or by way of Commercial Paper.
(b) Rs.50 Lakhs by way of Share Application money.
(c) Rs.50 Lakhs from one of its director by way of loan.
(d) Rs.50 Lakhs from issue of bonds and debentures.
(e) Rs.50 Lakhs by means of inter corporate deposit.
(f) Rs.25 Lakhs from its employees.
(g) Rs.50 Lakhs as business advance from customers.
(h) Rs.50 Lakhs as advance against consideration for an immovable property.
(i) Rs.25 Lakhs as security deposit for performance of provision of services.
(j) Rs.50 Lakhs from its promoter.
(k) Rs.25 Lakhs raised by issue of non-convertible debentures. These are not constituting charge on assets
of the company.
Solution
(a) The said amount is to be received or borrowed from any Government agency or Financial Institution or
Bank or by way of Commercial paper is not covered under deposits.
(b) Company must allot share within 60 days of receipt of share application money or it must refund the
share application money to the subscribers within 15 days from the date of completion of sixty days,
otherwise, such amount shall be treated as a deposit.
(c) Company can receive loan from its director (or relative of director of the private company) provided they
give a declaration to the company that the loan given is from own funds and not from borrowed money
and the same shall not be treated as deposits.
ȋȌ ϐ
against property; or such bonds or debentures should be compulsorily convertible into shares within 10
Ǣǡ ϐǤ
ȋȌ ϐǤ
(f) If amount received from employee doesn’t exceed their total annual salary; and such deposits should be
Ǧ ϐǤ
(g) Advance can be raised from customers however; such advance should be adjusted within 365 days from
the date of receipt of advance. Otherwise, it would be termed as deposits.
(h) Such amount should be adjusted against such property only; otherwise, it would be termed as deposits.
ȋȌ ϐǤ
ϐ Ǥ
(j) Amount brought in by the promoters of the company by way of unsecured loan in pursuance of the
ϐ ϐ
following conditions, namely:-
188 Lesson 4 • EP-CL
(i) the loan is brought in pursuance of the stipulation imposed by the lending institutions on the
ϐ Ǣ
(ii) the loan is provided by the promoters themselves or by their relatives or by both; and
ȋȌ Ǧ ϐ
bank are repaid and not thereafter.
(k) This amount is not a deposit in term of rule 2(1)(c) (ixa) provided these non-convertible debenture
are listed on recognized stock exchange.
Who is Depositor?
According to Rule 2(1)(d) of the Companies (Acceptance of Deposits) Rules 2014 ‘Depositor’ means –
(i) any member of the company who has made a deposit with the company in accordance with sub-section (2)
of section 73 of the Act; or
(ii) any person who has made a deposit with a public company in accordance with section 76 of the Act.
Applicability
The provisions under Sections 73 to 76 of the Companies Act 2013 and the Companies (Acceptance of Deposits) Rules,
2014 shall apply to all companies except -
• a banking company; and
Lesson 4 • Debt Capital and Deposits 189
Acceptance of Deposits
Acceptance of Deposit
Companies other
Private Companies than Private Eligible Companies
Companies
190 Lesson 4 • EP-CL
Repayment of Deposits
Every deposit accepted by a company shall be repaid with interest in accordance with the terms and conditions of
the agreement [Section 73(3)].
Exceptions:
A company may, for the purpose of meeting any of its short term requirements of funds, accept or renew such
deposits for repayment earlier than six months from the date of deposit or renewal, as the case may be, subject to the
condition that-
(a) such deposits shall not exceed ten per cent of the aggregate of the paid up share capital, free reserves and
securities premium account of the company, and
(b) such deposits are repayable not earlier than three months from the date of such deposit or renewal thereof.
(2) Joint Names: Where depositors desire, deposits may be accepted in joint names not exceeding three, with or
without any of the clauses, namely, “Jointly”, “Either or Survivor”, “First named or Survivor”, “Anyone or Survivor.”
(3) Acceptance Limit for Deposit: No company referred to in sub-section (2) of section 73 shall accept or renew
any deposits from its members if the amount of such deposits together with the amount of other deposits
outstanding as on the date of acceptance or renewal of such deposits exceeds 35 per cent of the aggregate of
the paid-up share capital, free reserves and securities premium account of the company.
Lesson 4 • Debt Capital and Deposits 193
Exception:
ϐ
one hundred percent of aggregate of the paid up share capital, free reserves and securities premium account
ϐ Ǧ͵Ǥ
Explanation. - ǡ ϐ
which is licensed to operate by the Reserve Bank of India or the Securities and Exchange Board of India or the
Insurance Regulatory and Development Authority of India from the International Financial Services Centre
located in an approved multi services Special Economic Zone set-up under the Special Economic Zones Act 2005
(28 of 2005) read with the Special Economic Zones Rules, 2006.
Further the maximum limit in respect of deposits to be accepted from members shall not apply to following
classes of private companies, namely:-
(i) a private company which is a start-up, for 10 years from the date of its incorporation;
ȋȌ ϐ ǡǣǦ
(a) which is not an associate or a subsidiary company of any other company;
ȋȌ ϐ
ϐ ǡ Ǣ
(c) such a company has not defaulted in the repayment of such borrowings subsisting at the time of
accepting deposits under section 73.
From From
From Members-Upto 35% of From Members Public
the aggregate of paid-up share Public-
capital, Free Reserves & Prohibited
Securities Premium account Upto 10% of Upto 25%
its aggregate of
Paid up Share aggregate
Exemptions Capital, Free of the
Paid-up
Reserves and
share
Securities capital,
Private Company from Members- Upto ϐ Premium Free
100% of aggregate of the paid up share Company from Account Reserves
capital, free reserves and securities Members-Upto 100% and
premium account of aggregate of the paid Securities
up share capital, free Premium
reserves and securities Account
Maximum limit in respect of deposits to be premium account
accepted from members shall not apply to
following classes of Private Companies:
(i) a private company which is a start-up, for 10
years from the date of its incorporation,
ȋȌ ϐ
following conditions, namely:-
(a) which is not an associate or a subsidiary
company of any other company;
(b) the borrowings of such a company from
ϐ
corporate is less than twice of its paid up
share capital or 50 crore rupees,
whichever is less; and
(c) such a company has not defaulted in the
repayment of such borrowings subsisting
at the time of accepting deposits under
section 73.
(6) Rate of interest of deposits/payment of brokerage - No company under sub-section (2) of section 73 or any
Eligible company shall invite or accept or renew any deposits in any form, carrying a rate of interest or pay
brokerage thereon at a rate exceeding the maximum rate of interest or brokerage prescribed by the Reserve
Ǧϐ Ǥ
(7) Alteration of terms and conditions - The company shall not reserve to itself either directly or indirectly a
right to alter, to the prejudice or disadvantage of the depositor, any of the terms and conditions of the deposit,
deposit trust deed and deposit insurance contract after circular or circular in the form of advertisement is
issued and deposits are accepted.
Lesson 4 • Debt Capital and Deposits 195
Maintenance of liquid assets and creation of Deposit Repayment Reserve Account [Rule 13]
Every company referred to in sub-section (2) of section 73 and every eligible
Deposit Repayment
company shall on or before the 30th day of April of each year deposit the sum as
Reserve Account: 20%
ϐ ȋ Ȍ Ǧ
of the amount of deposits
amount so deposited shall not be utilised for any purpose other than for the
maturing during the
repayment of deposits. The amount remaining deposited shall not at any time fall
ϐ Ǥ
ϐ Ǥ
When a company referred to in under sub-section (2) of section 73 or any eligible company permits a depositor to
renew his deposit, before the expiry of the period for which such deposit was accepted by the company, for availing
Lesson 4 • Debt Capital and Deposits 199
of a higher rate of interest, the company shall pay interest to such depositor at the higher rate if such deposit is
renewed in accordance with the other provisions of these rules and for a period longer than the unexpired period
of the deposit.
For the purposes of this rule, where the period for which the deposit had run contains any part of a year, then, if such
part is less than six months, it shall be excluded and if such part is six months or more, it shall be reckoned as one year.
Case Law:
19/09/2018 M/s Ind-Swift Limited (Appellant) v. Registrar of Companies NCLAT
(Respondent)
ϐ n before CLB and obtained relief under Section 58AA read with Section 58A(9) of
ǡ ͳͻͷ ϐ ǡ Ǧϐ ǡ
instalments and rate of interest from NCLT, New Delhi under Section 74 of the Companies Act, 2013 which was
rejected by NCLT, New Delhi bench. This Appeal is against rejection of the application/s.
ϐ
of huge extension and that there was no reason to accept the plea for further extension. The NCLT appears to
ǡϐǤ
Section 76 makes it clear that legislature has put in many safeguards when deposits are to be taken from public.
One of the important provisions is to ensure that the Company creates a charge of its assets of an amount not
less than the amount of deposits accepted in favour of the deposit holders.
Section 76(2) read with Sections 73 and 74 would apply to acceptance of deposits from public by eligible
Companies but it saves the Company which had accepted or invited public deposits under the relevant provisions
of the old Act and Rules thereunder and has been repaying such deposits and interests thereon in accordance
with such provisions, then the provisions of Clause (b) of Sub-Section (1) of Section 74 of the new Companies
Act, 2013 shall be deemed to have been complied with. This is, however, subject to the fact that the Company
complies with the requirements under the Act and the Rules and “continues to repay such deposits and interest
due thereon on due dates for the remaining period” as per the terms and conditions.
Considering these provisions, it appears to us that Section 74(1)(b) was attracted and when it appears from
record that the Appellant defaulted, the penal provisions would get attracted.
Thus, when once a scheme had been got settled, from CLB, default on the part of the Appellant would attract
penal provisions as the earlier scheme itself laid down. Hence, present appeal for further extension is dismissed.
9. Eligible company inviting secured deposits shall provide for security by way of a charge on its assets for the
due repayment of the amount of deposit and interest thereon. The company shall submit Form CHG-1 with
Registrar for assets other than intangible assets. Secured deposits including interest there on can in no case
exceed the market value of the charged assets assessed by the registered valuer.
10. Eligible companies proposed to accept deposits from public is required to issue advertisement one in English
newspaper having countrywide circulation and one newspaper in vernacular language having wide
ϐ Ǥ Ȁ
ϐ
ȋ ȌǡȌϐ
statement is laid before members, whichever is earlier.
11. Upload the circular/advertisement on the company Website, if any.
12. Collect duly signed application form along with money from the members.
13. Issue receipts of deposits within 21 days of the receipts of money/realization of cheque.
ͳͶǤ ϐ
14 Companies (Acceptance of Deposits) Rules, 2014, within 7 days from the date of such issuance of deposit
receipt.
15. Pay interest as per the rate proposed on agreed terms.
16. Deposit on or before the thirtieth day of April each year such sum which shall not be less than twenty percent
ϐ ϐ
keeping it in a separate bank account called deposit repayment reserve account.
17. Submit return of deposits in Form DPT-3 on or before 30th June each year for information as on 31st March
of respective year.
Do you Know?
• ϐ͵ͳ ǡʹͲͳͻ
you:
» Paid-up Share Capital Rs. 150 Crore
» Free Reserve Rs. 50 Crore
» Securities Premium Account Rs. 20 Crore
» Capital Redemption Reserve Rs. 10 Crore
The company has not accepted any deposits as of now. The Board of Directors want to know what is the
maximum amount it can accept by way of deposits from (i) members and (ii) the public. Advise them.
• Arnav is the Senior Manager (Purchase) of Future Products Ltd. The company is not listed in any stock
exchange. It took Rs. 7 lakh from Arnav under an employment contract @ 4% interest per annum. Arnav
is paid a salary of Rs. 75,000 per month. The auditor of the company has pointed out that there is a
noncompliance of provisions of Companies Act, 2013. Examine the observation of the auditor with
reference to the provisions of the Companies Act, 2013.
• A public company may issue secured irredeemable debentures. Comment.
• A real estate company took advance money from its customers in the course of business on which no
Ǥ ϐ ǡ
whether to treat this advance as ‘advance’ or ‘deposit’. Advise the company on how to treat this amount
without interest.
Lesson 4 • Debt Capital and Deposits 205
ANNEXURES
SPECIMEN RESOLUTION FOR ACCEPTANCE OF DEPOSITS FROM
MEMBERS AND/OR PUBLIC
“RESOLVED THAT pursuant to the provisions of Section 73 and 76 of the Companies Act, 2013 (the Act) read with
the Companies (Acceptance of Deposits) Rules, 2014 (the Rules) and other applicable provisions, if any, and
subject to such conditions, approvals, permissions, as may be necessary, consent of the members be and is hereby
accorded to the Company to invite/accept/renew/receive money by way of unsecured/secured deposits from its
members and public.”
“RESOLVED FURTHER THAT Mr. C, Chairman & Managing Director, be and is here by authorized to issue the
circular or circular in the form of advertisement, which has been approved by the Board of Directors of the
company at their meeting held on the (day) of (month) of (year) and which delineates the silent features of the
deposit scheme of the company and other relevant particulars as prescribed by the Act and the Rules.”
“RESOLVED FURTHER THAT Mr. C, Chairman & Managing Director, be and is hereby authorized to have the
ǡ ǡϐ
with the Registrar of Companies, NCT of Delhi & Haryana, New Delhi, pursuant to the Rules, and to publish the
same in English language in Times of India (Delhi edition) and in Hindi in Dainik Jagran (Delhi edition).”
“RESOLVED FURTHER THAT for the purpose of giving effect to this Resolution, the Board of Directors be and is
hereby authorized to do such acts, deeds, matters and things as Board of Directors may in its absolute discretion
consider necessary, proper, expedient, desirable or appropriate for such invitation/acceptance/renewal/receipts
as aforesaid and matters incidental thereto.”
ȋ ϐ
the state of Delhi and Times of India (Delhi edition) and Dainik jagran (Delhi edition) are widely circulated
newspaper in the state of Delhi.)
Lesson 4 • Debt Capital and Deposits 207
LESSON ROUND-UP
a separate bank account to be called deposit repayment reserve account. The said reserve shall not be
used by the Company for any purpose other than repayment of deposits.
• ϐ
accepted or renewed.
• ϐForm DPT-3 with the Registrar.
• There are stringent penal provisions (Section 75 and 76A) to safeguard the interest of depositors.
GLOSSARY
TEST YOURSELF
(These are meant for recapitulation only. Answer to these questions are not to be submitted for evaluation).
1. What are the restrictions imposed on the borrowing powers of the Board of Directors? If a company
borrows beyond its powers, examine the remedies open to such creditor:
(i) When the money has not been spent;
(iii) When the money has been spent to pay the debts of the company.
ʹǤ ǫ ϐǫ
3. What is debenture? What are the kinds of debentures?
4. What is a convertible debenture? What are the provisions of the Companies Act, 2013 regarding
convertible debentures or loans?
5. Is it compulsory to maintain a Debenture Redemption Reserve Account? If yes, how?
6. Write short notes on the following:
(i) Ultra vires borrowings
(ii) Intra vires borrowings
(iii) Security for borrowings
(iv) Types of borrowings
(v) Commercial Papers
7. Who is a debenture trustee? Why is it compulsory to appoint a trustee in connection with the issuance of
debentures? What are the duties of a trustee?
8. Whether the following can be appointed as Debenture Trustee:
ȋȌ ϐ
(ii) A creditor whom the Company owes Rs. 500 only
(iii) Spouse of Mr. X, director of the Company
(iv) A person who has given a guarantee for repayment of amount of debentures issued by the Company?
9. Which of the following Companies can accept deposits from Public:
a. XYZ Private Limited having a net worth of 200 Crore
b. A Limited having a turnover of 550 Crore
c. B Limited having a net worth of 90 Crore and turnover of 440 Crore
10. Write short note on the following:
(i) Depositor
(ii) Eligible Company
(iii) Secured and Unsecured Deposits
(iv) Return of Deposits
(v) Deposit Repayment Reserve Account
(vi) Register of Deposits
210 Lesson 4 • EP-CL
11. What are the consequences of failure to invite or accept deposits or repay deposits by a Company in
contravention of manner or conditions prescribed under the provisions under Chapter V.
12. Prepare a checklist of secretarial compliance to be made by a company secretary for acceptance of
deposits.
13. What is the procedure for accepting deposits from members?
14. What are the exemptions available to companies for not complying with provisions under Chapter V.
ϐ
exemptions?
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
Lesson 5 Charges
Key Concepts One Learning Objectives
Should Know
To understand:
• Mortgage
• The meaning and Concept of Charges
• Pledge
• ǡϐ
• Lien satisfaction of charges under the Companies Act, 2013 and Rules
• Interest made thereunder
• Hypothecation • ϐ
• Charges satisfaction of charges
• ϐ • Authority relating to creation of charges
• Satisfaction • Format of Resolutions (Board and General Meetings)
• Creation • Understanding Forms prescribed by MCA
• Regulatory requirements under SARFAESI
• Judicial Pronouncements and its relevance to various regulatory
provisions
• ϐ Ȁ
Lesson Outline
• Introduction
Ȉ ϐ
Ȉ Ǥϐ ǡϐ
• Registration of charges
• Satisfaction of charges
Ȉ ϐ
• Purchase or Acquisition of a property subject to charge
• Consequences on non-registration of charge
Ȉ ϐ
• Procedural Aspects
• ǧ
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
212 Lesson 5 • EP-CL
Regulatory Framework
Power of Registrar to make entries of satisfaction & release in absence of intimation from
Section 83
company
Section 180 Restriction on Power, of Board read with Rules made there under
The Companies (Registration of Charges) Rules, 2014 as amended from time to time
A charge is a security given for securing loans or debentures by way of a mortgage, hypothecation, pledge etc on the
assets of the company. A company, like a natural person, can offer security for its borrowings. Normally, the debentures
and other borrowings of the company are secured by a charge on the assets of the company. Where property, both
ǡ
present right to have it made available, a charge is created. The legal right of the creditor can only be enforced at
some future date if certain conditions governing the loan are not met.
In simple terms a charge is a right created by a company i.e. “Borrower” on its assets or properties or any of its
ǡϔ ǡǤǤDz dz
agreed WRH[WHQG¿QDQFLDODVVLVWDQFH
(b) Delivery is on return of a loan or promise to perform something. Therefore, if your friend gives you his Motor-
cycle to go to college, it is not pledge but can be called simple bailment;
(c) It should be in pursuance of a contract: The delivery must be done under a contract (oral or written). However,
it is not necessary that delivery and loan take place at the same time. Delivery can be made even after the loan
is received.
Hypothecation:
ϐr Indian Law for long time and was used more on the basis of practice. However,
under the Secruitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
ȋ ǡʹͲͲʹȌ ϐDz ǡ
or future, created by a borrower in favour of a secured creditor without delivery of possession of the movable
ǡ ϐ ǡ ϐ
ϐ dzǤ
Mortgage:
ϐ ͷͺ ǡͳͺͺʹǤ
ϐ In the matter of Ranjit Ray vs. D.A.
purpose of securing payment of money advanced by way of loan. David, it was held that an
assignment of Book debts as
ϐ security is a mortgage requiring
for the purpose of securing the payment of money advanced or to be registration as a charge under the
ǡ the performance of Companies Act, 2013
an agreement which may give rise to pecuniary liability.
214 Lesson 5 • EP-CL
ϐ
The Charge here has the following essential features:
According to section 100 of the Transfer of Property Act, 1882, charge means where an immovable property of one
person is by act of parties or operation of law made security for the payment of money to another and the transaction
does not amount to a mortgage, the latter person is said to have a charge on the property, and all the provisions which
apply to a simple mortgage shall, so far as may be, apply to such charge.
Ǯ ǯǮǯ
Dzdz ǯ Ǯǣ
The key words
part of a legal or equitable claim to a right in property, right, title, and interest. Collectively,
mentioned in
the word includes any aggregation of rights, privileges, powers and immunities;
ϔ
distributively, it refers to anyone right, privilege, power, or immunity.’
of Charge are
“interest” and Dzdz ǯ a legal right or interest that a
“lien”. ǯ ϐǤ
`Lien’ strictly, is simply a right to possess and retain property until some claim attaching to
ϐ Ǥǯ
DzdzDzdz Ǥ
3. A mortgage is a transfer of an interest in A charge only gives a right to receive payment out of a
ϐ Ǥ particular property. There is no such transfer of
interest in the case of a charge. Charge does not operate
as transfer of an interest in the property and a
transferee of the property gets the property free from
the charge provided, he purchases it for value without
notice of the charge.
4. ϐǤ The charge may be in perpetuity.
5. A mortgage is good against subsequent A charge is good against subsequent transferees with
transferees. notice.
6. A simple mortgage carries personal liability In case of charge, no personal liability is created. But
Ǥ where a charge is the result of a contract, there may be
a personal remedy.
Registerable charges
Section 2(16) and section 77 of the Act require to register the charge created by way of every kind of interest or lien
(including negative lien) on the property or assets, tangible or otherwise, of a company as security, including
mortgage. The section does not list down types of charge to be registered unlike provisions of section 125 of the
Companies Act, 1956.
The following is an indicative list of charges to be registered with the Registrar:—
I. a charge created for the purpose of securing any issue of debentures or deposits;
216 Lesson 5 • EP-CL
III. a charge on any immovable property, wherever situate, or any interest therein. This includes mortgage by
deposit of title deeds. [Wallis v Simmonds (Builders) Ltd[(1974) 1 All ER 561];
IV. a charge on any book debt of the company. Assignment of book-debts as security is covered. [Paul and Frank
Ltd v Discount Bank Overseas Ltd [(1966) 2 All ER 9221 (Ch D)]]
V. a lien on sub freight is a charge on book-debt of the company. [Welsh Irish Ferries Ltd. [(1985) [ECLE 327 (Ch
D)]]; Ladenberg& Co. v Goodwin [(1912) 3 KB 275]].
X. a charge on intangible assets, including goodwill, patent, a licence under a patent, trade mark, copy right or a
license under a copyright;
XI. a charge or assignment on insurance policies obtained by the company;
XII. all and every kind of pledge margin money, including shares, is a pledge. Lien on shares in the company (e.g.
company A has invested in shares of company B. The latter, through its Articles has lien over shares including
fully paid shares for any debts due from member including trade debts. Company B supplies goods to company
A on credit. On such supply, lien is created and should be registered as charge).
As a matter of convenience and practice, as and when more funds are required by companies, they approach the
Ȁ Ȁ Ǥ
However, when the same assets are charged for second and subsequent times, a very important question arises as
to priority in respect of the charges in favour of different institutions. This situation is managed by securing consent
of the earlier lending institutions to the creation of second and subsequent charges on the same assets. With their
consents, the charges of all the lending institutions ranks pari passu, i.e., on the same footing.
However, the earlier lending institution may not give its consent to the creation of second charge on the ground that
the realisable value of the asset charged in its favour is not adequate to cover its loan and as such it cannot share its
right of charge with the lending institutions which seek second and subsequent charges.
The real question which alerts the lending institutions is how to ensure that the assets being offered as security for
their proposed loans are not already encumbered.
ϐ
secure loan granted to the company. Charge documents are registered in the MCA Portal under the Straight through
Lesson 5 • Charges 217
Process (STP) and hence, there is possibility that the charge is registered on such assets on the personal wherein
Ǥ ϐ
professional for charge related forms, need to be aware that what is registerable charge and what could be the
implications of registration of such wrong charges on the charge creator more particularly when personal insolvency
is at door steps, charge holder and certifying professionals.
The Government of India launched (Central Registry of Securitisation Asset Reconstruction and Security
Interest) with an objective of eliminating fraudulent and dubious activities related to taking out loans by pledging
the same asset as mortgage to various lenders at the same time.
The CERSAI also maintain a single, centralised registry of all equitable mortgages. The CERSAI registry essentially
contains all the relevant and necessary information regarding mortgage loans taken out on a single property.
ǡ ϐ
as well all the necessary information about the borrower.
Kinds of Charges
Ǥ ǣ
A charge on the property of the company as security for debts may be of the following kinds, namely:
ȋȌ ϐ Ǣ
(i) Floating charge.
ϐ ϐ ϐ
ϐǡ ǤǤǡ ǡ ǡ
Ǥϐ ǡǡ ϐ
ϐǤ ǡ
property, subject to the charge so that the charge holder’s interest in the property is not affected and the charge
ϐ
Ǥ ǦȀ ǡ ϐ
will be placed in the highest ranking class of creditors.
• Pari-passu charge - Under, this the charge is shared by more than one lender in the ratio of their outstanding
Ǥ Ǥ
ϐ ǯ
ϐǤ ϐ
Ǥϐ
ϐ ǣ
(a) when the company goes into liquidation;
(c) when the creditors or the debenture holders take steps to enforce their security e.g. by appointing receiver to
take possession of the property charged;
In Parmanent Houses (Holdings) Ltd. 1988 BCLC 563(CH ǡϐ
D), where a company issued debenture creating a charge in favor ϐ
of a lending bank mentioning that the charge shall crystallize on company. It has priority over any subsequent
happening of an event or default in payment. When the payment equitable charge and other unsecured
was not made on demand by bank, it was held that the charge creditors. But preferential creditors who have
was no longer a floating charge at the time when receiver was priority for payment over secured creditors in
appointed. the winding-up get priority over the claims of
ϐ Ǥ
Lesson 5 • Charges 219
ϐ
property untilϐ Ǥ ϐ
Ǥϐ ǡ
the crystallization of the security:
(c) a judgment creditor who attaches goods of the company and gets them sold (But if the goods are not sold and
ǡϐ ȌǢ
(d) the employees of the company, as well as other preferential creditors in the event of winding-up of the
company;
(e) the supplier of goods to the company under a hire-purchase agreement on terms that goods are to remain
the property of the seller until they are paid for in full, has priority over the floating charge, whether
Ǧ ϐ Ǥ
Ǧ ϐ ǡ ǡ ǡ
Ǥ ϐ ǡǡ
power of the company to create charges in priority to or pari passu with it. But even in such a case a person who takes
ϐ Ǥ
the charge. In terms of Section 80 of the Act, where a mortgage or charge on any property or assets of a company or
any of its undertakings required to be registered under Section 77 of the Act has been so registered, any person
acquiring such property, assets, undertakings or any part thereof or any interest or share therein shall be deemed
to have notice of the charge as from the date of such registration.
ϐ ϐ ǡ
Ǥǡϐ
ǡǦȀǤ
Ȁϐ ǯ
liquidation is imminent.
Company failing to register the charges within 30 days from the date of creation of charge
may register the same with Registrar with additional fees (section 77)
In case of charges created before commencement In case of charges created after commencement
of the Companies (Amendment) Act, 2019 within of the Companies (Amendment) Act, 2019,
300 days of such creation and if not registered with in 60 days on payment of such additional
within 300 days, within 6 months from the date of fees of such creation and if not registered
commencement of the Companies (Amendment) within 60 days, within further 60 days after
Act, 2019 after payment of such additional fees. payment of ad valorem fees.
(b) in case of charges created on or after the commencement of the Companies (Amendment) Act, 2019 i.e. on or
ͲʹǤͳͳǤʹͲͳͺǡ ǡ
prescribed:
ϐǣ
ȋȌ ȋȌ ϐ ǡ ǡ ǡ
ad valorem fees as may be prescribed.
Lesson 5 • Charges 221
The MCA has prescribed the following additional fees or ad valorem fees as the case may be, payable with effect
from 01.08.2019 on the charges created after 01.08.2019: -
After amendments in Section 77 of the Act, the provisions restricts the ability of the company to register charge after
ͳʹͲͳʹͲ Ǥ
or the company should ensure that before 120 days otherwise the entire purpose of registration of charge to have
transparent information in public domain will defeat. This situation also deprives genuine lenders to recover their
dues. This also gives wrong picture of charges on the property of the company, when third party takes search of MCA
for registration of charges.
More than 30 days and up to 60 December 31, 2020 to January 29, Additional fees 3 times or 6
days 2021 times as the case may be
More than 60 days and up to 120 January 30, 2021 to March 29, Additional fees + ad valorem fees
days 2021 as per table below
The time limit provided under the section 77 shall apply from the date of completion of acquisition as the assets
become assets of the company form such date.
ϐ
(b) where the instrument or deed relates, whether wholly or partly, to the property situated in India, the copy shall
ϐ ϐ under the hand of any Director or Company Secretary of the company or an
ϐ Ǥ
Satisfaction of Charges
According to section 82 read with the rules, the company shall give intimation to the Registrar of the payment or
satisfaction in full of any charge within a period of thirty days from the date of such payment or satisfaction in Form
No.CHG-4 along with the fee.
The Registrar may, on an application by the company or the charge holder, allow such intimation of payment or
satisfaction to be made within a period of three hundred days of such payment or satisfaction on payment of such
additional fees as may be prescribed.
224 Lesson 5 • EP-CL
On receipt of such intimation, the Registrar shall issue a notice to the holder of the charge calling a show cause within
ǡ
to the Registrar. If no cause is shown, by such holder of the charge, the Registrar shall order that a memorandum of
satisfaction shall be entered in the register of charges maintained by the registrar under section 81 and shall
inform the company. If the cause is shown to the Registrar shall record a note to that effect in the register of charges
and shall inform the company accordingly.
ǡ ϐ
ϐǡ
of CHG-4 and is signed by the holder of charge [Proviso to Section 82(2)].
Power of registrar to make entries of satisfaction in absence of intimation from the company
There may be times where a company may fail to send intimation of satisfaction of charge to the Registrar but
according to section 83 of the Act, registrar may on receipt of satisfactory evidence of satisfaction register
Ǥ Ȃ
ȋȌ ϐǢ
(b) Part of the property or undertaking charged has been released from the charge;
(c) Part of the property or undertaking ceased to form part of the company’s property or undertaking. The
Registrar may enter in the register of charges a memorandum of satisfaction.
Section 83(2) states that the Registrar shall inform affected parties within thirty days of making the entry in the
registrar of charges.
According to section 80, where any charge on any property or assets of a company or any of its undertakings is
registered under section 77, any person acquiring such property, assets, undertakings or part thereof or any share
or interest therein shall be deemed to have notice of the charge from the date of such registration. The section
ϐ ǡ ǡ
would be deemed that he has complete knowledge of charge from the date the charge is registered.
This charge register shall be open to inspection by any person on payment of fee for each inspection.
Lesson 5 • Charges 225
Section 84 provides that if any person obtains an order for the appointment of a receiver of, or of a person to
manage, the property, subject to a charge, of a company or if any person appoints such receiver or person under any
power contained in any instrument, he shall, within a period of thirty days from the date of the passing of the order
or of the making of the appointment, give notice of such appointment to the company and the Registrar along with
a copy of the order or instrument and the Registrar shall, on payment of the prescribed fees, register particulars of
the receiver, person or instrument in the register of charges.
Section 84(2) states that any person so appointed shall, on ceasing to hold such appointment, give to the company
and the Registrar a notice to that effect and the Registrar shall register such notice.
As per Rule 9 the notice of appointment or cessation of a receiver of, or of a person to manage, the property, subject
ǡ ϐ Ǥ ǤǤ
ǯ
ͺͷͳͲ ϐ
Ǥ Ǥ ϐ
company or any of its undertakings, indicating in each case such particulars as may be prescribed.
The entries in the register of charges maintained by the company shall be made forthwith after the creation,
ϐ ǡ Ǥ
Such register of charges shall contain the particulars of all the charges registered with the Registrar on any of the
property, assets or undertaking of the company and the particulars of any property acquired subject to a charge as
ϐ Ǥ
All the entries in the register shall be authenticated by a director or the secretary of the company or any other
person authorised by the Board for the purpose.
ϐ
thereon shall be preserved for a period of eight years from the date of satisfaction of charge by the company.
ϐ
register of charges.
The following details is required to be entered in to form CHG-7 maintained by Company.
i. S.No.
ii. Charge ID
iii. Date of creation of charge or date of acquisition of property subject to charge
iv. Date of registration of creation of charge
v. Short description of the property charged
vi. Period and amount secured by the charge
vii Names and addresses of the charge holder
viii. Particulars of the terms and conditions of the charge
Ǥ
226 Lesson 5 • EP-CL
(b) by any other person on payment of fee subject to reasonable restriction as the company by its articles impose.
Liquidator or any other creditor take into account the unregistered charges.
ǡ Ǧϐ The ONGC had not been able to point out whether the so called
does not invalidate the charge against the charge, on the basis of which it was claiming preference as a
company as a going concern. It is void only secured creditor, was registered or not. It was held that in the
against the liquidator and the creditors at the light of this failure, ONCG could not be treated as a secured
time of liquidation. The company itself cannot ϐ ͳʹͷ
have a cause of action arising out of non- erstwhile Companies Act, 1956 and the statutory requirement
registration [Independent Automatic Sales under the said section.
Ltd. v. Knowles &Foster (1962) 32 Comp Cas]. This does not, however, mean that the charge is altogether void
Dz and the debt is not recoverable. So long as the company does not
anything contained in any other law for the go into liquidation, the charge is good and may be enforced.
time being in force, no charge created by a
company shall be taken into account by the
liquidator appointed under this Act or the Insolvency and Bankruptcy Code, 2016, as the case may be, or any other
Ǧ ȋͳȌ ϐ
charge is given by the Registrar under sub-section.
In other words, the liquidator or other creditor of the company need not consider the said unregistered charge
against assets of the company.
ȋȌ ϐ ǡ
ranking if applicable the charge holder(s)
In terms of Rule 12 of the Companies (Registration of Charges) Rules, 2014, the Central Government may on an
ϐ Ǥ Ǧͺ ͺǣ
Ȁ Ȁ
• Ensure that the Special Resolution under section 180(1)(a) has been passed by the Company authorizing
Board of directors to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking
ϐ Ȁ Ǥ
Lesson 5 • Charges 229
• In case of Private company the provisions of Section 180 is not applicable. Hence, Unless the articles provides,
Private companies are not required to pass special Resolution for to sell, lease or otherwise dispose of the
whole or substantially the whole of the undertaking of the company.
• Ȁ
ǡ ϐ
registrar.
e-form MGT-14
• The particulars of the charge in Form No.CHG-1 (for other than Debentures) or Form No.CHG-9 (for
Ȍ Ȁ ϐ
thirty days of creation.
• ϐ Ͳ ǡ
ǡ Ͳ
additional fees and ad valorem fee.
Ǧ ǦͶ
• The Company is required to intimate the satisfaction in full of any charge registered to the Registrar in Form
No.CHG-4 within a period of thirty days from the date of the payment with normal fees.
Ǧ Ǧͺ
• with respect to any memorandum of satisfaction or other entry made in pursuance of section 82 or section 83,
• ϐ Ǥ
INC.28 along with the fee as per the conditions stipulated in the said order.
Ǥ
• The register of charges maintained by the company in Form No. CHG.7 and enter therein particulars of
ǡϐ ǡ
or undertaking of the company
• All the entries in the register shall be authenticated by a director or the secretary of the company or any other
person authorised by the Board for the purpose.
Ǥ ǡ ϐ
machinery, stocks, debts including boo ǡǤ
Ǥ ǡ ϐ ǡ ǡ
patent, copyright, trademark, licence, franchise or any other business or commercial right of similar nature.
Lesson 5 • Charges 231
Ǥ ǡ ϐ Ǯ ǯ
residential or commercial or a part thereof by an agreement or instrument other than mortgage.
The registration of securitisation, asset reconstruction or creation of security interest by the securitisation company
or reconstruction company or the secured creditor, as the case may be, with the Central Registry as per the provisions
of section 23 of the said Act is an additional compliance. As per the provisions of sub-section 4 of section 20 of the
said Act, such registration with Central Registry is not in derogation of the provisions of the Act and has no effect on
priority and validity of the charge.
ϐ
i. Case Laws
2. Cosslett (Contractors) Ltd., Re, (1996) 1 BCLC 407 (Ch D) A construction company’s washing machine which
was in use at the site was declared under the terms of the contract to be the employer’s property during the
Ǥ ϐ ϐ
ϐ Ǥ
3. In Lord Macnaghten in Government Stock Investment Company Ltd. vs. Manila Rly. Company Ltd., (1897) A.C. 81,
Dz Ǥ
charged in the varying condition in which it happens to be from time to time. It is the essence of such a charge
that it remains dormant until the undertaking charged ceases to be a going concern, or until the person in
whose favour the charge is created intervenes”.
4. Illingworth & Another vs. Holdsworth & Another, (ibid). Dz ϐ
ϐ
occurs or act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp.
5. Maturi U. Rao vs. Pendyala A.I.R. 1970 A.P. 225 ϐ ϐ
ϐ Ǥ
6. In Smith vs. Bridgend County Borougn Council (2002) 1 BCLC 77 (HC), the agreement was held to constitute a
ϐ ǡǡ ǡ
the contractor’s plant and equipment and apply the proceeds in discharge of its obligations. A right to sell an
asset belonging to a debtor and appropriate the proceeds to payment of the debt could not be anything other
Ǥ ϐ ϐ
which could be consumed or removed from the site in the ordinary course of the contractor’s business.
Section 125 of Companies Act 1956 (Currently Section 77) is applicable only to a charge created by a company
by a contract, and not to a charge arising by operation of law. ȋǤϔ ǡ
Engineering Co. (1984) 56 CC. 214; Ǥ Ǥ Ƭ Ǥ ǤǤϔ ǡ ǡ
Madras (1972) 42 CC 359; K. Saradambal vs. Jagannathan and Brothers (Automobile Engineers & Motor Works
(P) Ltd. (1972) 42 CC. 359 (Mad).
In the case of C.K. Siva Sankara Panicker vs. Kerala Financial Corpn.(1980) 50 Comp Cas 817 (Ker)] it was held
that an unsecured creditor could not challenge the validity of a charge or claim right over the property on the
ground that he incurred the liability prior to its registration.
Corporate Guarantee does not create any Charge per-se, unless mortgage or hypothecation etc is created on
ȀǤ
business does not amount to a charge, since the guarantee given in case of a loan or a borrowing is contingent
in nature and does not amount to a charge.
Ǥϐ
a. Delegation of powers
MCA has delegated powers, its powers to Regional Directors at Mumbai, Kolkata, Chennai, New Delhi,
Ahmedabad, Hyderabad and Shillong under Sections 8(4)(i) for alteration of memorandum in case of
conversion into another kind of company, 8(6), 13(4) and (5), 16, 87, 111(3), 140(1) and proviso (i) to 399(1)
ϐ ǤǤͳ͵ͷʹȋȌʹͳǡʹͲͳͶǤ
2(i). Dz consent of the Company be and is hereby accorded in terms of Section 180(1) (a) and
ǡǡ ǡʹͲͳ͵ϐ Ǧ ǡ
Ȁ Ȁ
mortgage on such immovable and movable properties of the Company, both present and future, together with
power to takeover the assets of the Company in certain events, to or in favour of and The Industrial Finance
Ǥȋ Ȍϐpari passu Charge to secure the Rupee Term Loans of Rs.1000.00
lacs and Rs.880.00 lacs respectively granted to the Company together with interest at the agreed rate(s),
ǡǡǡ ǡ ǡ
ǡ Ȁ
dzǤ
Dz the Board of directors be and is hereby authorised and shall always be deemed
ϐ
Ȁ ǡ iving effect to the above
resolution.”
Dz consent of the Company be and is hereby accorded in terms of Section 180(1)(a) and
ǡǡ ǡʹͲͳ͵ϐ Ǧ ǡ
Ȁ Ȁ
mortgage on such immovable and movable properties of the Company, both present and future, in favour of
234 Lesson 5 • EP-CL
State Bank of India, New Delhi the Company’s Bankers by way of Second Charge to secure the various fund
ȀǦ Ȁ
ǡ ǡ ǡ ȋȌ
Ȁ
of State Bank of India, in such form and manner as may be acceptable to State Bank of India.
Dz the Board of directors be and is hereby authorised and shall always be deemed
ϐ
Ȁ ǡ Ǥdz
ǤͳƬʹ
Industrial Development Bank of India (IDBI) and The Industrial Finance Corporation of India Ltd. (IFC) have
sanctioned Term Loans of Rs. 1000.00 lacs and Rs. 880.00 lacs respectively to the company. These loans are to
be secured by First Charge on immovable and movable properties of the Company, both present and future, in
ǡ Ǥ Ȁ ϐ
Ȁ Ȁ
assistances.
Section 180(1)(a) of the Companies Act, 2013 provides, inter alia, that the Board of directors of a public
company shall not, without the consent of a public company in general meeting, sell, lease or otherwise
dispose of the whole, or substantially the whole, of the undertaking(s) of the Company or where the Company
owns more than one undertaking, of the whole or substantially the whole of any such undertaking.
Ȁ
Term Loans and the various Cash Credit facilities may be regarded as disposal of the whole or substantially
the whole of the said undertaking(s) of the Company and therefore requires consent of the Company pursuant
to Section 180(1)(a) of the Companies Act, 2013.
The Directors recommend the resolutions for approval of the shareholders as Special Resolutions under
Section 180(1)(a) of the Companies Act, 2013.
None of the directors, key managerial personnel of the company or their relative is concerned or interested,
ϐ ed resolution.
3. Specimen of the Board Resolution under Section 179(3)(d) to borrow Moneys within the authority of
the Board.
The Chairman informed the Board that The Industrial Finance Corporation of India Ltd. (IFCI), New Delhi,
has at the request of the company, sanctioned Rupee Term Loan of Rs. to meet a part of the cost of
Ǧ Ǧ
plant by copper Distillation Plant, installation of an additional MS. Digester and construction of storage
ǯ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ
A copy of the letter of sanction no................. dated.............received from IFCI (a copy whereof duly signed bythe
ϐ ȌǤ ǡ
following resolution was passed unanimously:-
ȋ Ȍ
1. That the Company do accept the offer of The Industrial Finance Corporation of India Ltd. (IFCI) vide their
letter no.............. dated ........................ to grant to the company rupee term loan of Rs. ............ (Rupees only)
ȋǮǯȌ
Lesson 5 • Charges 235
no ..................... dated received from IFCI (copy whereof duly initialed by the Chairman was placed on the table
at the meeting).
2. That Shri......................... and Shri......................... be and are hereby authorised severally to convey to IFCI acceptance
ϐ
ϐ
ǡ
other writings as may be necessary or required for this purpose.
3. That the company do borrow from IFCI the said term loan of Rs. ................ (Rupees......................only) on the
terms and conditions set out in the General Conditions No. GC-1-99 applicable to assistance provided by IFCI
ȋǮ ǯȌ
term loan in addition to the special terms and conditions mentioned in the Letter of Intent no....................... dated
received from IFCI (Copies whereof, duly initialed by the Chairman were placed on the table at the meeting)
and also avail of interim disbursement(s) from time to time as may be allowed by IFCI.
4. That the IFCI will be at liberty to appoint and remove, at its sole discretion, Nominee Director(s) on the Board
of directors of the Company from the date of the passing of this resolution and that the appointment of the
ȋȌ Ȁ
sanctioned assistance.
5. That the aforesaid Standard Forms of Loan Agreement(s) be and are hereby approved and Shri.......................
and Shri.......................... be and are hereby severally authorised to accept on behalf of the Company such
ϐ ϐ Ǥ
Ǥ ȋȌ
ǡ
or commitment on the part of IFCI to advance any money or incur any obligation thereunder.
10. That Shri................................. and Shri................................ of the Company be and are hereby severally authorised
Ȁ
when become necessary and to sign letter(s) of undertakings, declarations, agreements and other papers
which the company may be required to sign for availing of the required facilities and, if so required, the Common
ϐ ϐ ǡ
in token thereof as required by the Articles of Association of the Company.
236 Lesson 5 • EP-CL
Ǧ
• Mortgage is created by the act of parties whereas a charge may be created either through the act of
parties or by operation of law.
• A registration of charge constitutes a notice to whosoever acquires a future interest in the charged assets.
• In e-governance era, there is a facility for inspection of charge through electronic means using internet.
• ϐ
ϐ ǡ ȋ
Ȍ ϐ ǡ
case may be, have been complied with.
• The Company shall give intimation to Registrar of payment or satisfaction in full of any charge within a
period of 30 days from the date of such payment or satisfaction.
• The Registrar may, on an application by the company or the charge holder, allow such intimation of
payment or satisfaction to be made within a period of three hundred days of such payment or satisfaction
on payment of such additional fees as may be prescribed.
• On receipt of such intimation, the Registrar issues a notice to the holder calling a show cause within such
ͳͶ
to the Registrar.
• In case the company fails to send intimation of satisfaction of charge to the Registrar, the Registrar may
enter in the Register of Charges, Memorandum of Satisfaction on receipt of evidence to his satisfaction.
• ϐ
satisfaction of charge in form CHG-8.
• Company or any person interested in the charge can make an application to the Central Government for
ϐ ǦͺǤ
Garnishee Charge An individual who holds money or property that belongs to a debtor subject to an
attachment proceeding by a creditor.
Pledge Ǯǯ ǡ
redeemable on certain terms, and with an implied power of sale on default.
ȋǡ ǡ Dz dzȌ
endnote, footnote, or bibliography citation or reference for a source that was cited in the
preceding note or list item.
Pari Passu On equal footing or proportionately.
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation).
ͳǤ ϐ ǫǤ
4. What is a charge? State the procedure to be followed by a company for registration of a charge.
6. State the procedure to be adopted by the company for satisfaction of a registered charge.
Lesson Outline
•
• ϐ
• vs. Dividend
• Types of Dividend
•
•
• ȋ Ȍ
•
•
ȋ Ȍ
•
•
• Ƭ
• Ƭ
• Ǧ
•
•
•
•
240 Lesson 6 • EP-CL
Regulatory Framework
ǡʹͲͳ͵
Deals with
ʹȋ͵ͷȌ ϐ
ͳʹ͵
ͳʹͶ
ͳʹͷ Ƭ
ͳʹ ǡ
ͳʹ Ǥ
ȋ ȌǡʹͲͳͶ
͵
ȋ ǡǡȌǡʹͲͳ
͵
ͷ
ͳʹͶȋȌ
ͻͲȋͻȌ ǡʹͲͳ͵
Ǧ͵
ȋȌǡʹͲͳͷ
ʹͻ
͵Ͳ
Ͷʹ
Ͷ͵ Dividends
INTRODUCTION
Dzdz DzdzǤ Ǥ ϐ
ϐ DzϐdzǤ
ϐ ϐ
Ǥ ǡϐϐǤ
Ǥ ǯ
ǯ Ǥ ǡ ϐ
Ǥ
ǡ
ǡ Ǥ ǡDzdz
ϐ ǤDzdz ϐ
Ǥ
ϐǤ
ϐǡ Ǥ
Lesson 6 • ϐȂ ʹͶͳ
Ǧϔϔ
Ǥ
ǡ ʹͲͳ͵
Ǥ
Ǥ
Ǥ
follows:
Ǥ
ϐ Ǥ
Ǥ
Ǥ ͳ͵Ͷȋ͵ȌȋȌ ǡʹͲͳ͵ǡ
ǯǡǡ Ǥ
Dividend is said be an dividend, if is declared by of Annual General
of Ǥ All provisions of dividend shall be applicable on
dividend Ǥ
Ǥ
Lesson 6 • ϐȂ ʹͶ͵
As per SecͶ͵ ǡʹͲͳ͵ǡ
ǡϐ ϐǤǡ
ϐǣ
ȋȌ ǣ ϐ
ϐ Ǥ ϐ ǯ
ϐϐ Ǥ
ǡǡ Ǥ
ȋȌ Ǧ ǣǦ ϐ
Ǥ ǡ
Ǥ Ǥ
Ǥ
Ǥ
Ǥ
ϐ Ǥ
Ǧǡ Ǧ
ǡ
Ǥ
Illustration:
Ǥǡ ϐǡ Ǥ
ǣ
• ͳǡͷͲͲ ǤͳͲͲ Ǣȋ̷ͻΨȌ
• ǡͲͲǡͲͲͲǤͳͲ
• ǣǤʹͳǡͲͲǡͲͲͲ
• ǣǤ͵ǡͷͲǡͲͲͲ
• ǣǤ͵ǡͷͲǡͲͲͲ
• ȋƬȌǣǤ͵ǡͲͲͲ
• ϐǣǤ͵ǡͷǡͲͲͲ
• ǣͳͷΨ
• ͳͲΨǤ
• ǣ Ǥ ͳͲǡͻͳǡ͵ͲͲ ȏͳȀͳͲ ȋǤ ͳǡͷͲǡͲͲͲ Ϊ Ǥ
ͲǡͲͲǡͲͲͲΪǤʹͳǡͲͲǡͲͲͲΪ͵ͲͲͲȌȐ
• ǣǤͺǡͷͲǡͷͲͲ
ǫ
Lesson 6 • ϐȂ ʹͶͷ
Illustration:
ϐǤ ǤǤʹͲʹͲǦʹͳ
ǣ
Ǧͳ Ǧʹ Ǧ͵
ʹͲͳǦͳͺ ͳͲΨ
ʹͲͳͺǦͳͻ ͳʹΨ
ʹͲͳͻǦʹͲ ͷΨ
Illustration:
ͳͲ ʹͲʹͲ
ȋ ǤǤȌǣ
ǤʹͲͳͻǦʹͲǣϐ ǤǤʹͲͳͻǦʹͲǢ
ǤʹͲʹͲǦʹͳǣϐϐ ǤǤʹͲʹͲǦʹͳ
Ǥ Ǥ ȋȌ ǡ ϐ
ǤǤʹͲͳͻǦʹͲǤ ϐ ǡ
ǤǤʹͲͳͻǦʹͲǤ
ǣǦ ȋȌ ͷ ǡͶͷ
ϔ
ϔ Ǥ
ϔ ǤǤͶͷͿǦͶǡ
ǤǤͶͷͿǦͶǡ ϔ
Ǥ ǡ ǤǤȋȌǡ ϔ
ϔ ǤǤͶͶǦͷǤ
Ǥ ǣ ͳʹ͵ȋͶȌ
ǡʹͲͳ͵ǡ ǡ
ϐ Ǥ
Illustration:
Ǥ ͳ͵ʹͲʹͲǡ
ǫ
Ǥ ǣ ͳʹ͵ȋͷȌ ǡ ʹͲͳ͵
Ǥ
ϔ ǤǤǤͺͼͻȋȌ ͻ Ͷͷͻǡ
ǡ
Ͷ Ǥ
Ǥ ǣ ͳʹͶȋͳȌ ǡʹͲͳ͵ǡ
͵Ͳ Ǥ Ǧ͵ ϐ
Lesson 6 • ϐȂ ʹͶ
Ǥ Ȁ ǣ ͳʹ͵ȋȌ
ǡ ʹͲͳ͵ ͵
ȋ ȌͶȋ Ǥ
ʹͲͳ͵Ȍ ǡ ǡ
Ǥ
Ȁ
ǡDz dz
Ǥ
Ǥ
Ǥ
ȋ ȌǤ
ȋ Ȍǣ ͳʹͶȋͷȌ ǡʹͲͳ͵
ǡǡ Ǧ ȋͳȌ ͳʹͷ
ȋ Ȍ
Ǥ
ȋȌ ǡ ͳͻͻͻǡ
Ǣ
ȋȌ ʹͲͷ ǡͳͻͷǢ
ȋȌ Ǣ
ȋȌ Ǧ ȋͶȌ ͵ͺǢ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ȋȌȋȌǢ
ȋȌ ǡ
Ǣ
ȋȌ Ǣ
ȋȌ Ǥ
͵ ȋ ǡǡȌǡʹͲͳǡ
ǡǡǣǦ
ȋȌ ȋȌȋȌǦ ȋʹȌ ͳʹͷ ǡ
ʹͲͳ͵Ǣ
ȋȌ Ǧ ȋȌ ͳʹͶ ǡʹͲͳ͵Ǣ
ȋȌ ϐ ȋȌǢ
ȋȌ ǡ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǧ ȋ͵Ȍ ͳͲȋ
Ȍ ǡͳͻͲǡ ͳͲȋ
Ȍ ǡͳͻͺͲǡǦ ȋ͵Ȍ ͵ͺ ǡͳͻͷͷ ͶͲ
ȋȌ ǡͳͻͷͻǢ
ȋȌ ͻͲȋͻȌ Ƭϐ
ǡ Ǣ
ȋȌ Ǥ
ȋȌȋȌ
Ǥ
ͷ ȋ ǡǡȌǡʹͲͳǡ
Ǥ ǣ
ȋͷȌ ȋ ǡ ǡ
ȌǡʹͲͳǣ ǡ
ǣǦ
ȋȌ ǡǡ
Ǧ
Ǥ
ȋȌ ǡ ϐ
ǡͳͻͻǡ
Ǥ ǡ
Ǥ ͵ϐ Ǥ
ȋ Ȍ ǡǦ
ȋȌ ǡ
Ǥ
ȋȌ ǡ
Ǥ
ȋȌ Ǧ
ȋȌ ǡ
ǡ ǡ ϐ Ǣ
ȋȌ ȋȌǡ ϐ
ϐ
Dz ϐ ǤǤǤǤǤ dz
Ǣ
ȋȌ ϐ Ǥ Ǧͳ ϐȋ
ȌǡʹͲͳͶǢ
ȋȌ ϐ ǡ
ϐ Ǥ̶
ȋȌ Ǥ
ʹͷʹ Lesson 6 • EP-CL
2
Ǧͷ
͵
4
ȋ ǦεǦε
ǦͷǦε Ȍ
ͷ
Ǧ ͵Ͳ
ϐ ǡ
ͳ
ϐ Ǧ Ǧʹ
ȋ ǦεǦεϐȌ
2
Ǧ ͷ͵Ͳϐ
ʹͷͶ Lesson 6 • EP-CL
ǣ
ʹǣ ǡ ʹǣ ǡ
ϐ Ǧͳǡ
Ǣ
ϐ Dz ϐ ǤǤǤǤǤ
ȋͻȌ ͻͲ dz
Ǣ
Lesson 6 • ϐȂ ʹͷ
͵ǣ ǡ ͵ǣ ϐ ǡ
ǦͶ
͵Ͳ ϐ
ǣ Ǣ
Ȍ ͻͲȋͺȌ
Ǣ
Ȍ ͻͲȋͻȌ
Ǥ
Ͷǣ ǡ
ǦͶ
͵Ͳ
ǣ
Ȍ ͻͲȋͺȌ
Ǣ
Ȍ ͻͲȋͻȌ
Ǥ
Other Corporate Actions
• ϐ ǡ ǡ ǡ
ȏ
Ǥ ǦͶ͵Ͳ
Ǥ
• ǡ
ȋȌǡʹͲͲͻ
Ǥ
• ǡ
Ǥ
•
Ǥ
• ǦȋͻȌǡȋͳͲȌ
ǦȋͳͳȌ ϐ
Ǥ Ǧ
Ǥ
• Ǧ
Ǥ
Illustrations:
ͳȌ ǡǫ
ʹȌ ϐ ϐ
ϐ ϐϐ ǫǡ
ǫ
͵Ȍ ǫ
ͶȌ ǫ
ͷȌ ǡ
ǫ
Ȍ ǡ ǫ
Ȍ ǫ
ͺȌ ǫ
ͻȌ Ȁ ǫ
ͳͲȌ
ǫ
ͳͳȌ
ǫ
ͳʹȌ Ȁ
ǫ
ͳ͵Ȍ ǫ
ͳͶȌ ǫ
ͳͷȌ ϐ Ǧͷ
ϐ ǫ
ͳȌ ͵ǫ
ͳȌ Ȁ
ǫ
ͳͺȌ ͷȋȌȋ Ȍ ǡʹͲͳ
ǫ
ͳͻȌ ǫ
ʹͲȌ Ǧ Ǧͷǫ
ʹͳȌ ϐ ȋ Ȍǫ
ȋȌ ǡ ȋȌ Ǧ
ʹ Ǧ ϐ Ǧ ȋͷȌ
ͳʹ͵ Ǥ
ȋȌ ǣ ͳͺ ǡ ʹͲͳͶǡ
ϐ ϐ
ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǥ
ȋ Ȍ ǣ ǡǮǯϐ
ȋȌ ͵ͺ ǡʹͲͳ͵Ǥ
Ǥ ͵ͺ ǡ ʹͲͳ͵ǡ
ǡǡ
ǡǡǡ
ǡ ǡǡ
Ǥ
ȋȌ ǣ Ǧ ϐ
ϐ Ǧϐ Ǥ
ǡʹͲͳ͵ ϐ ǡǡ
ϐǤ
ʹͶǤ Dz Ȁ
͵Ͳ ϐǤ
ʹͷǤ ϐ Ǥ
ǡǡǡǤǤ
Ǥ
ȋ Ȍ ǡϐǤ ǡ
ǡ
ǡǤǤǡ ǦǤ
ȋȌ
Ǣ
Ǥȏ ǡ ǡ ͺ͵ȋ͵ȌȐǤ
ͳͶǤ ǣ
ȋȌ Ǥ
ȋȌ ǤǤ
ȋ Ȍ Ǥ
ͳͷǤ ǤǤǤʹͲʹͳǦʹʹǡ ǯ
ǡ Ǥ
Ǥ
ͳǤ
ϐ
ϐǤ
ͳǤ
ϐ Ǥ
ͳͺǤ ǡǡ
ȋ Ƭ Ȍǡ ȋ Ȍ
ȋȌȏȋ ȌȀȋ
ȌȀ ȋ ȌȐǡ ȋ Ȍǡ Ǥ
ǡ ȋ ƬȌ
Ǥ ȀȀȀͳͲȀʹͲͳ͵ ʹͳǡ ʹͲͳ͵
Ǥ
ͳͻǤ ϐ ǯ
Ǥ Ǥ
ϐǤ
ʹͲǤ ǡ
Ǥ
ʹͳǤ Ȃ
ϐ Ǥ
ʹʹǤ
ǡ
Ȁ Dz dz ǡ
ϐǤȋ ͳʹ
ǡʹͲͳ͵Ȍ
ʹ͵Ǥ Ǥ ǡ
ϐǤ
ʹͶǤ ϐ ǡ
Ǥ
ʹͷǤ ϐ
Ǥ
ʹ Lesson 6 • EP-CL
ʹǤ ϐ
ϐ ǡ
ȋ ǡ ȌǤ
ʹǤ Ȁ
Ǥ
ʹͺǤ DzȀ dz
͵Ͳ ϐǤ
Ǧ
̶ ͳʹ͵ ǡǡ
ǡʹͲͳ͵ȋ ȌǡʹͲͳͶǡ
ǤʹȀǦȋȌ ǤǤǤͳͲȀǦȋȌ
ǤǤǤǤǤǤǤǤǤǤǤȏȋȌȐϐ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤʹͲǤǤ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡʹͲǤǤǤ̶
̶ Dz ȋʹͲǤǤȌ
Lesson 6 • ϐȂ ʹ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤdzǤǤǤǤǤǤǤǤǤǤǤǤǤǤ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ
ǤȏȋȌȐǡǡ ϐǤ̶
̶ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ
ǡ ǡ Ǥ
ǡǤ̶
̶ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ
ǡ
ǡ Ǥ̶
Ǧ
“ ͳʹ͵ ǡǡ
ǡʹͲͳ͵ȋ ȌǡʹͲͳͶǡϐ
ͺ ȋǤȌ ǤͳͲͲ
ǡ ͳǡǤǤǤǤǤǤǤǤǤʹͲǤǤ ͵ͳǡǤǤǤǤǤǤǤǤǤʹͲǤǤ
Ǥ ȏȋȌȐǡ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤʹͲǤǤǡ
Ǥ̶
̶ Dz ȋʹͲǤǤȌ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤdz ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ Ǥ Ǥ
ȏȋȌȐǡǡ ϐǤ̶
̶ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ ǡǤǡ
ǡ ǡ Ǥ
ǡ
͵ͲǤ̶
̶ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ ǤǤǤǤǤǤǤǤǤǤǡ
ǡ
ǡ Ǥdz
ǣǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤϐ ǣǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ
Ǧ
NOTICE OF BOOK CLOSURE
ͻͳ ǡʹͲͳ͵Ͷʹ ȋȌǡʹͲͳͷǡ
ǡ
Ȁϐ ǡ ȋȌǡ ǤǤǤǤǤǤǤǤǤǤǤ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤȋȌǡ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤʹͲǤǤȋȌǡǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤȋȌǤǤǤǤǤǤʹͲǤǤȋ ȌǤ
ϐ ǡ
ǡǤ
ʹͺ Lesson 6 • EP-CL
Ǧ
CURRENT PROFITS
Dz ͳʹ͵ ǡǡ
ǡʹͲͳ͵ȋ ȌǡʹͲͳͶǡ
ǤǤǤǤǤǤǤǤǤǤǤǤǤ ȋǤȌ
ϐ͵ͳ ʹͲǤǤǤ
ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤϐǡ
ǡ
ǤǤǤǤǤǤǤǤǤǤǤǤʹͲǤǤǡ Ǥdz
Ǧ
ϐ ǡǤǤϐ ͵ͳ
ǡʹͲǤǤ Ǥ
ǡǡ
Ǥ
ǣ
Dz ͳʹ͵ ǡǡ
ǡʹͲͳ͵ȋ ȌǡʹͲͳͶǡ
ǡ
Ǥ ǥǥǥʹͲǤǤ ǥǥǤǤƮǥǥǤǤ ǡ
ȋ ȌǡʹͲͳͶǡǡ
ǡ
ǤǤǤǤǤǤǤǤǤǤǤʹͲǤǤ Ǥdz
Lesson 6 • ϐȂ ʹͻ
ǧ
ϐ ϐϐ
ϐǤ
ǯǡ
ǡ Ǥ
ȋ ͻͳ ǡʹͲͳ͵Ȍ
TEST YOURSELF
ȋ ǤȌǤ
ͳǤ ϐ ǮǯǤ ϐ
ʹͲͳ͵Ǥ
Ǥ ǫ
ʹǤ ǡ Ǥ
̷ ͳʹΨ ϐ ϐ Ǥ
ϐǤ
͵Ǥ Ǯ ǯǮ ǯǤ
ͶǤ ǣǦ
ȋȌ ȋ ȌǤ
ȋȌ
ͷǤ ǣ
ȋȌ Ǥ
ȋȌ Ǥ
ȋ Ȍ Ǥ
Ǥ Ǥ ϐǤʹͷ
Ǥ ǣ
ȋͳȌ ǦǤ
ȋʹȌ
ͳͲǤ
ȋ͵Ȍ Ǥ
ȋͶȌ Ǥ
LIST OF FURTHER
READINGS
• ǣȀȀǤǤǤȀ
• ǣȀȀǤ Ǥv.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
Corporate
Lesson 7 Social Responsibility
Key Concepts One Learning Objectives Regulatory
Should Know Framework
To understand:
• Corporate Social The Companies Act, 2013
Responsibility • Origin of “CSR”
• CSR Committees • Legal provisions of the • Section 135- Corporate
Companies Act, 2013 and Social Responsibility
• CSR Activities rules made thereunder,
The Companies (Corporate
• Philanthropy related to CSR
Social Responsibility Policy)
• Impact • Formation of CSR Rules, 2014
Assessment Committee
• CSR Expenditure • Rule 2-10
• Annual Action
Plan • CSR Activities Schedule VII of the Companies
Act, 2013- CSR Activities
• Disclosure Requirements
Lesson Outline
• Origin of CSR
• CSR under the Companies Act, 2013
• CSR Activities of Company
• CSR Implementation
• CSR Expenditure
• ϐ
• Disclosure Requirements
• Consequences of Non- Compliance
• CSR portal
• LESSON ROUND UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
272 Lesson 7 • EP-CL
INTRODUCTION
Ƭϐ ǣ
ϐ ǡ
society and the environment by taking responsibility for the impact of their activities on stakeholders, environment,
consumers, employees, communities, and all other members in the public sphere. The basic premise is that when
ǡ ϐǡ
Ǧϐ Ȁ Ǥ
the society from the corporates to give something in return to the society with whose explicit or implicit help these
entities stand where they are.
ϐ ǡ
practices and programs that are integrated throughout business operations. The concept of CSR has evolved over the
years and now used as strategy and a business opportunity to earn stakeholder goodwill.
s h ip
r
ne nity
ϐ
r t
Pa mmu
Co Evolution
of CSR
ϐ
sustainability
Increasing
Inv integration with
Co estm business process Phil
an
thr
mm en
un t op
ity y
Strategic
Giving
274 Lesson 7 • EP-CL
ϐ
ǯʹͲͲͻǤǮ
ǡ ǡ ʹͲͳͳ ȋ Ȍǯ
extensive consultationǡ ǡ Ǥ
developed based on India’s socio-cultural context and priorities as well as global best practices.
There have been various national and international developments in the past decade that have nudged businesses
to be sustainable and more responsible, prior most being the United Nations Guiding Principles on Business &
Human Rights (UNGPs). These became the key drivers for further revision of the guidelines. Some of these include
ǡʹͲͳ͵Ǥ ϐ
duties on the Directors of a Company (Section. 166) requiring them to promote the objects of the company for the
ϔ ǡ ǡ ǡ ǡ
Ǥ There was also a need to demonstrate more visibly India’s
ǯǮ ǡ Ƭǯ
India’s commitment to Sustainable Development Goals (SDGs).
ǡ ǡ ʹͲͳͳ
ȋ Ȍ
(NGRBC) in the year 2019. These guidelines urge businesses to actualise the principles in letter and spirit.
ǣ
1. Businesses should conduct and govern themselves with integrity in a manner that is Ethical, Transparent and
Accountable.
2. Businesses should provide goods and services in a manner that is sustainable and safe
3. Businesses should respect and promote the well-being of all employees, including those in their value chains.
4. Businesses should respect the interests of and be responsive to all their stakeholders.
5. Businesses should respect and promote human rights.
6. Businesses should respect and make efforts to protect and restore the environment.
Ǥ ǡ ϐ ǡ
responsible and transparent.
8. Businesses should promote inclusive growth and equitable development.
9. Businesses should engage with and provide value to their consumers in a responsible manner.
The 21st Report of the Parliamentary Standing Committee on Finance is one of the prime movers for bringing the
CSR provisions within the statute. It was observed by the Standing Committee, that annual statutory disclosures on
ϐ Ǧ Ǥ
135(4) of the Companies Act 2013 mandates every company qualifying under Section 135(1) to make a statutory
disclosure of CSR in its Annual Report of the Board. Rule 8 of the Companies (Corporate Social Responsibility Policy),
Rules, 2014 prescribes the format in which such disclosure is to be made.
2015 High Level Committee on CSR (HLC-2015) under the chairmanship of Shri. Anil Baijal makes
Recommendations on the CSR framework and stakeholder concerns.
2015 The SEBI extends BRR reporting to top 500 companies by market capitalization.
2016 The Companies Law Committee reviews the recommendations of HLC-2015 for adoption.
2018 The second High Level Committee on CSR constituted under the Chairmanship of Shri. Injeti Srinivas,
Secretary, Corporate Affairs to review the CSR framework.
2018 Committee on Business Responsibility reporting constituted under the chairmanship of Shri.
Gyaneshwar Kumar Singh, Joint Secretary, Corporate Affairs.
2018 Zero Draft of National Action Plan on Business and Human Rights released by Ministry of Corporate
Affairs.
2019 National Guidelines on Responsible Business Conduct released.
2019 The Companies (Amendment) Act, 2019 amended the CSR provisions.
2020 The CSR (Amendment) Rules, 2021 and the Companies (Amendment) Act, 2020 has decriminalised
and brought a revolutionary changes in the CSR provisions.
Applicability
During immediately
preceding Financial Year
Where the amount to be spent by a company under Section 135 (5) of the Companies Act, 2013 does not exceed Rs.
50 Lakh, the requirement under Section 135 (1) for constitution of the Corporate Social Responsibility Committee
shall not be applicable and the functions of such Committee provided under this section shall, in such cases, be
discharged by the Board of Directors of such company. ȏ ȋȌ ǡ ͶͶǤ
ϔ ;ǡͶͶǢ ͶͷǤȐ
ϐ ϐ
criteria for a continuous period of three years.
ϐȏʹǡʹͲͳͶǡ[Amended by the Companies (Corporate
Social Responsibility Policy) Amendment Rules, 2021]
• “Administrat dz Ǯ
administration’ of Corporate Social Responsibility functions in the company but shall not include the expenses
directly incurred for the designing, implementation, monitoring, and evaluation of a particular Corporate
Social Responsibility project or programme;
• “Corporate Social Responsibility (CSR)” means the activities undertaken by a Company in pursuance of its
statutory obligation laid down in section 135 of the Act in accordance with the provisions contained in these
rules, but shall not include the folloǡǣǦ
(i) activities undertaken in pursuance of normal course of business of the company.
However, any company engaged in research and development activity of new vaccine, drugs and
medical devices in their normal course of business may undertake research and development activity
ǡ Ǧͳͻϐ ʹͲʹͲǦʹͳǡʹͲʹͳǦʹʹǡ
2022-23 subject to the conditions that-
(a) such research and development activities shall be carried out in collaboration with any of the
ȋȌ Ǣ
(b) details of such activity shall be disclosed separately in the Annual report on CSR included in the
Board’s Report;
(ii) any activity undertaken by the company outside India except for training of Indian sports personnel
representing any State or Union territory at national level or India at international level;
(iii) contribution of any amount directly or indirectly to any political party under section 182 of the Act;
ȋȌ ϐ ϐ ȋȌ ʹ
Wages, 2019 (29 of 2019);
ȋȌ ϐ
products or services;
ȋȌ ϐ Ǥ
Lesson 7 • Corporate Social Responsibility 279
• “CSR Committee” means the Corporate Social Responsibility Committee of the Board referred to in section
135 of the Act;
• “CSR Policy” means a statement containing the approach and direction given by the board of a company,
taking into account the recommendations of its CSR Committee, and includes guiding principles for selection,
implementation and monitoring of activities as well as formulation of the annual action plan;
Ȉ Dz dzϐ
organisation under section 3 of the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947), to
which the provisions of the Schedule to the said Act apply;
• “Ongoing P dzǦ ϐ
having timelines not exceeding three years excluding the financial year in which it was commenced, and
shall include such project that was initially not approved as a multi-year project but whose duration has
been extended beyond one year by the board ϐ Ǥ
Ongoing Project
Does the term ‘ongoing project’ mean projects involving capital assets like Building, Hospital and
ǫ
ϐ ʹȋȌ Ǧ
ϐ
ϐ
multi-year project but whose duration has been extended beyond one year by the board based on reasonable
ϐ Ǥ
Such ongoing project may or may not involve capital assets or development of any other infrastructure.
Ǧ
Where a company is not required to appoint an independent director under sub-section (4) of section 149, it shall
have in its Corporate Social Responsibility Committee two or more directors.
Rule 5 of CSR Rules, 2014 further state that, where a private company has only two directors on the Board, the CSR
Committee can be constituted with these two directors.
The CSR Committee of a foreign company shall comprise of at least two persons of which one person should be
resident in India and the other person nominated by the foreign company.
The Board’s report shall disclose the composition of the Corporate Social Responsibility Committee.
ǫ
Brave Ltd. is listed at Bombay Stock Exchange and has a net worth of over 600 crore. The company has constituted
ȋȌ Ǥ
directors of the company, Jay being an independent director.
ǡ ʹͲͳ͵ Ǯ ǯǡ
whether the company has complied with the provisions of the Act in this regard?
• To formulate and recommend to the Board, a CSR Policy which would indicate the activities to be undertaken
ǡ ϐ Ǥ
• To recommend the amount of the expenditure to be incurred on the activities undertaken in pursuance of the
CSR policy.
ȓͷȋʹȌǡʹͲͳͶǣ ǡ
ǡ ǡǣǦ
(c) the modalities of utilisation of funds and implementation schedules for the projects or programmes;
(d) monitoring and reporting mechanism for the projects or programmes; and
(e) details of need and impact assessment, if any, for the projects undertaken by the company.
Quorum for CSR Meetings: Law is also silent w.r.t. quorum for the committee meeting. But as per Secretarial
ͳǣ ȋ Ȍ
the Board is necessary to form the Quorum for Meetings of such Committee unless otherwise stipulated in the Act
or any other law or the Articles or by the Board.
A member of the Committee appointed by the Board or elected by the Committee as Chairman of the Committee, in
accordance with the Act or any other law or the Articles, shall conduct the Meetings of the Committee. If no Chairman
has been so elected or if the elected Chairman is unable to attend the Meeting, the Committee shall elect one of its
members present to chair and conduct the Meeting of the Committee, unless otherwise provided in the Articles.
(i) Provisions of the resources for the establishment, implementation, maintenance and continual improvement
of the system required for CSR;
(ii) Involvement of all concerned stakeholders in CSR Implementation;
(iii) Awareness and promotion of CSR as an integral part of the business and culture.
CSR Implementation [Rule 4 of the Companies (Corporate Social Responsibility Policy) Rules, 2014]
[Amended by the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021]
The Board shall ensure that the CSR activities are undertaken by the company itself or through -
(a) a company established under section 8 of the Companies Act, 2013 or a registered public trust or a registered
society, registered under section 12A and 80 G of the Income Tax Act, 1961 (43 of 1961), established by the
company, either singly or along with any other company; or
(b) a company established under section 8 of the Companies Act, 2013 or a registered trust or a registered
society, established by the Central Government or State Government; or
(d) a company established under section 8 of the Companies Act, 2013, or a registered public trust or a registered
society, registered under section 12A and 80G of the Income Tax Act, 1961, and having an established track
record of at least three years in undertaking similar activities.
282 Lesson 7 • EP-CL
Illustration:
A company is having ongoing projects carried out by an implementing agency which is not registered
under section 12A and 80G of the Income Tax Act, 1961. Will the company become non-compliant under
ǫ
As per Rule 4 of the amended Rules, the requirement of registration for an implementing agency under section
12A and 80G of the Income Tax Act, 1961 is effective from 22nd January, 2021. In the given case, since the
company has already assigned projects which are being carried out by the implementing agency, such agency
should obtain the requisite registration at the earliest and in the meanwhile may continue to carry on with the
projects assigned.
However, in case of new assignment, the implementing agencies should have prior registration.
Ǧ
• Mandatory Registration of CSR Entity: Every eligible entity who intends to undertake any CSR activity, shall
ϐform CSR-1 electronically with the Registrar, with
effect from the 01st day of April 2021:
However, the provisions of this sub-rule shall not affect the CSR projects or programmes approved prior
to the 01st day of April 2021.
• ϐ ǣ Form CSR-1 shall be signed and submitted electronically by the entity and
ϐa Chartered Accountant in practice or a Company Secretary in practice or a
Cost Accountant in practice.
Lesson 7 • Corporate Social Responsibility 283
• On the submission of the Form CSR-1 on the portal, a unique CSR Registration Number shall be generated
by the system automatically.
Example: ͶͶǦͷǤ
ͶͷǦǤ
ϔǦͷǤ ǡ
ϔǦͷǤ
• Role of International Organisationǣ ǡ
monitoring and evaluation of the CSR projects or programmes as per its CSR policy as well as for capacity
building of their own personnel for CSR.
• A collaboration of other Companies for CSR Expenditureǣ
companies for undertaking projects or programmes or CSR activities in such a manner that the CSR
committees of respective companies are in a position to report separately on such projects or programmes in
accordance with these rules.
• ϐ ǣThe Board of a company shall satisfy itself that the funds so disbursed have been utilised
ϐ
ϐ Ǥ
• Ongoing Projects: In case of ongoing project, the Board of a Company shall monitor the implementation of the
project with reference to the approved timelines and year-wise allocation and shall be competent to make
ϐ ǡǡ Ǥ
List of CSR Activities [Schedule VII of the Companies Act, 2013]
Some activities a ϐ
Ǥ
Ǥ ǡ
Ǧ Ǥ ǣ
(i) eradicating hunger, poverty and malnutrition, promoting health care including preventive health care and
sanitation including contribution to the Swach Bharat Kosh set-up by the Central Government for the
promotion of sanitation and making available safe drinking water;
(ii) promoting education, including special education and employment enhancing vocation skills especially
among children, women, elderly and the differently abled and livelihood enhancement projects;
(iii) promoting gender equality, empowering women, setting up homes and hostels for women and orphans;
setting up old age homes, day care centres and such other facilities for senior citizens and measures for
reducing inequalities faced by socially and economically backward groups;
ȋȌ ǡ ǡ ϐǡǡ
forestry, conservation of natural resources and maintaining quality of soil, air and water including contribution
to the Clean Ganga Fund set-up by the Central Government for rejuvenation of river Ganga;
(v) protection of national heritage, art and culture including restoration of buildings and sites of historical
importance and works of art; setting up public libraries; promotion and development of traditional arts and
handicrafts;
ȋȌ ϐ ǡǡ
Forces (CAPF) and Central Para Military Forces (CPMF) veterans, and their dependents including widows;
(vii) training to promote rural sports, nationally recognized sports, paralympic sports and Olympic sports;
(viii) contribution to the Prime Minister’s National Relief Fund or Prime Minister’s Citizen Assistance and Relief in
Emergency Situations Fund (PM Cares Fund) or any other fund set up by the Central Government for socio-
economic development and relief and welfare of the Scheduled Castes, the Scheduled Tribes, other backward
classes, minorities and women;
284 Lesson 7 • EP-CL
MCA CLARIFICATIONS
ͳȌ ϐ Ǧͳͻ
programme (General Circular, Dated January 13, 2021)
How should the list provided in Schedule VII of the Companies Act be construed for the purpose of
ǫ
The statutory provision and provisions of CSR Rules, 2014, are to ensure that activities undertaken in
ǡʹͲͳ͵Ǥ
Ǥ ǡǦ
range of activities. It is for the Board of the company to take a call on this. ȏ ǤͷȀͶͷͼ
ͷ ǡͶͷͼ ǤͷȀͶͷͺ ͷ;ǡͶͷͺȐǤ
ϐ
Dzϐdzof Section 135(5) shall not include such sums as may be prescribed, and shall be
ͳͻͺǤ ǡ ϐ
ͳͻͺ ǡʹͲͳ͵ϐ
company in terms of Section 381 (1) (a) and Section 198 of the Companies Act, 2013. Every company will have to
286 Lesson 7 • EP-CL
ϐϐ
threshold criteria as prescribed under Section 135(1) of the Companies Act.
• Indian company: ϐ ǯ
ϐǮǯǤ Ǯϐǯǡ
ϐ Ǥ
ǡ ʹΨ ʹΨ ϐ
ϐ Ǥ
• Foreign company: The CSR Rules prescribe that in case of a foreign company that has its branch or a project
ϐ ǡ ϐ Ǥ
ϐ ͵ͺͳȋͳȌȋȌ
ϐ ͳͻͺ ǡʹͲͳ͵Ǥ
ϐ
company.
ϐ ǡ
ϐ Ǥ ǡ
companies in India which need to comply with the CSR obligations would not be included in the computation of net
ϐ Ǥ
ϐ
Foreign Company
Indian Company
covered under CSR Rules
ȋȌ ϐ
or branches of the company, whether
operated as a separate company or
otherwise; and
Administrative Overheads
• The board shall ensure that the administrative overheads shall not exceed 5% of total CSR expenditure of
the companyϐ Ǥ
General management
Includes expenses
incurred by the
ǣ
Administrative overheads
Administration
Designing
Implementation
Excludes expenses
directly incurred on
ǣ
Evaluation
Monitoring
• Where a Company spent on CSR in excess of the requirement (i.e. 2%), such excess amount may be set-off
Ȁ ͳ͵ͷȋͷȌ ͵ ϐ
ǣ
9 The excess amount available for set off shall not include the surplus arising out of the CSR activities, if
any, in pursuance of sub-rule (2) of this rule;
9 The Board of the company shall pass a resolution to that effect.
288 Lesson 7 • EP-CL
PENALTY
CSR Amendments- from ‘comply or explain’ to ‘comply or suffer’ to ‘comply or pay’
• Earlier CSR provisions was following “comply or explain” approach-If a company did not comply, it only had
to mention the reasons for non-compliance in their Board Report.
• Since there were serious compliance gaps, the Companies (Amendment) Act 2019 introduced Penalty for
Non-Compliance of Section 135(5) & (6) that included imprisonment, and hence, the approach shifted to
Dz ϐdzǡϐǤ
• However, it is again amended by subsequent amendments brought in by the Companies (Amendment) Act,
2020 which in view of Decriminalisation and Ease of Doing Business, has removed the prosecution provision.
• The respective provision of the Companies (Amendment) Act, 2019 never came into force as both 2019 &
2020 Companies (Amendment) Act provision related to penal provisions of CSR came to force on the same day
i.e. 22nd January, 2021.
Section 135(7) of the Companies Act, 2013, clearly states that, If a company is in default in complying with the
ͳ͵ͷȋͷȌͳ͵ͷȋȌ ǡʹͲͳ͵ǣ
290 Lesson 7 • EP-CL
ͳȌ ϐ
Ǧ ǫ
Section 135 (7) clearly states the penalty for default in complying with the provisions of sub-section (5) or
Ǧ ȋȌǤ Ǧ Ȁ ǡ
Rules, then the provisions of general penalty under section 450 of the Act shall be applicable.
2) If a company has unspent amount Rs. 10 Lacs as on 31.03.2021, whether such amount will be transfer
to said fund before 30.09.2021 or company may spend any amount (out of unspent amount) during
ϐ ǫ
No. If, on or before the last day of the relevant FY falling on or after January 22, 2021 to which the unspent
amount relates, and the said unspent amount was not already allocated to an Ongoing Project already
approved by the Board, then the Company cannot allocate or use such unspent amount for any other project
ϐ
the end of the relevant FY.
͵Ȍ ϐ ʹͲͳͶǦͳͷǡ ʹͲͳͷǦͳǡ ʹͲͳǦͳǡ ʹͲͳǦ
18,2018-19 and 2019-20, is the company required to transfer the entire unspent amount for the
ϐ ͵ͳ ǡʹͲʹͳǫ
Section 135 of Companies Act, 2013 was amended w.e.f 22nd January 2021 by inserting a new sub-section
(6) which states the treatment of unspent amount of CSR in case of on-going projects. The second proviso to
Sub section (5) of section 135 was also amended w.e.f 22nd January 2021, which now states that if the
Company fails to spend the amount prescribed in Section 135(5) and unless the unspent amount relates to
any on-going project referred to in sub-section (6), the Company shall transfer such amount to a Fund
ϐ ǡϐ Ǥ
ϐ
ʹͲʹͲǦʹͳ ϐ
ϐ ǡ Ǥ
ǡ ϐ ʹͲͳͶǦͳͷǡ
2015,-16, 2016- 17, 2017-18, 2018-19 and 2019-20, and if such provision remains outstanding as on 31st
ǡʹͲʹͳǡ ϐ
ǡ Ǥ
ͶȌ ʹǤͷΨϐͲǤͷΨǡ
the penal provisions and requirement for transfer of unspent amount apply to the Company over
ʹΨǫ
In terms of the provisions of section 135 of the Act, the penal provision under sub-section 7 and requirement
for transfer of unspent amount under sub-section (5) & (6) shall not be applicable on non-mandatory CSR
expenditure.
5) In case, the registration of trust is not mandatory, then what would be constituted as ‘Registered
ǯǮ ǯǫ
Lesson 7 • Corporate Social Responsibility 291
ǮǯǮ ǯȋͶȋͳȌȋȌǡʹͲͳͶȌ
would include Trusts registered under Income Tax Act 1961, for those States where registration of Trust is
Ǥȏ ǤʹͳȀʹͲͳͶͳͺ ǡʹͲͳͶȐǤ
Ȍ ǡ ϐ ǡ ͵
ǯǫǤǤ ǤͺͲ ͵
but after 2 years, the Company which has already spent Rs. 40 lacs on Rain water harvesting is not
ϐ Ǥ Ǥ ͶͲ
ǫ
ǡ ϐ ǡ ǡ
implementation of the project within the prescribed time period. The Board may alter such plan at any time
ϐ ǡ ǡ
ϐ ǡ Ǥ ǡ
completely would not be viable.
ǣ
CSR Reporting (Rule 8 of CSR Rules, 2014) [Amended by the Companies (Corporate Social
Responsibility Policy) Amendment Rules, 2021]
It is mandatory to include an Annual Report on CSR in the prescribed format, in the Board’s report of the Company.
The report containing the details of CSR Activities undertaken by the company and contents of CSR policy shall be
made available on Company’s website.
Directors Report:
ϐ
Annexure I (for F.Y. Commenced prior to 1st day of April, 2020) or Annexure II (w.e.f. F.Y. Commencing on or after
1st day of April, 2020), as applicable.
Impact Assessment for big CSR projects in terms of the provisions of Rule 8(3)(a) of the Companies
(Corporate Social Responsibility Policy) Rules, 2014
• ǤͳͲ ͵ ϐ
years shall undertake impact assessment through an independent agency of their CSR projects having outlays
of Rs.1 crore rupees or more which have been completed not less than 1 year before undertaking the impact
study.
• The impact assessment reports shall be placed before the Board and shall be annexed to the annual report on
CSR.
• A Company undertaking impact assessment may book the expenditure towards Corporate Social
ϐ ǡ ϐ
ϐ ǤͷͲǡ Ǥ
292 Lesson 7 • EP-CL
Website Disclosure (Rule 9 of the CSR Rules, 2014) [Amended by the Companies (Corporate Social
Responsibility Policy) Amendment Rules, 2021]
The Board of every eligible company referred to in sub-section (1) of Section 135 shall, after taking into account the
recommendations made by the Corporate Social Responsibility Committee, approve the Corporate Social
Responsibility Policy for the company and disclose contents of such Policy in its report and also place it on the
company’s website, if any and ensure that the activities as are included in Corporate Social Responsibility Policy of
the company are undertaken by the company.
The Board of Directors of the Company shall ensure essential disclosure of the following on the website of the
ǡǣ
• The composition of the CSR Committee
• CSR Policy and Projects approved by the Board
CSR Spent: Top Companies (2019-20)
ǫ
Snow Ltd. is a closely held public company in the manufacturing sector. The company's net worth is Rs.250 crore
͵ͳ ǡʹͲͳͷǤ ʹͲͳͻǦʹͲǤͷͲ Ǥϐ
ϐǣ
ϐȋǤ Ȍ
2019-20 7.50
2018-19 6.00
2017-18 4.50
2016-17 3.60
2015-16 3.00
The company has spent Rs.14 lakh during the year 2019-20 in an approved Corporate Social Responsibility
ȋȌ ϐ Ǥ
required to comply with the CSR initiative and whether the action of the company is in adherence to the relevant
provisions of the Companies Act, 2013 ?
Lesson 7 • Corporate Social Responsibility 293
CSR Portal
The National Corporate Social Responsibility Data Portal is an initiative by Ministry of Corporate Affairs, Government
ϐ
the companies registered with it.
The CSR ambit is getting bigger and for upcoming years it would turn as a unique knowledge base for analyzing and
achieving sustainability goals as among various large economies India is a country which has assured by mandating
CSR through its legislative action.
ǫ
ȋȌ It should be noted that companies, while undertaking Corporate Social Responsibility activities under
provision of the Companies Act, 2013, shall not contravene any other prevailing laws of the land including
Cigarettes and Other Tobacco Products Act (COTPA), 2003. ȏ ǤͶͻȀͶͷͼͷͼǡ
ͶͷͼȐǤ
294 Lesson 7 • EP-CL
(ii) Contribution and involvement of employees in CSR activities of the company will no doubt generate interest
Ȁ ȋȌ
to Socially Responsible Corporate (SRC) in all aspects of their functioning. Companies therefore, should be
encouraged to involve their employees in CSR activities. However monetization of pro bono services of
employees would not be counted towards CSR expenditure. ȏ ǤͷȀͶͷͼͷ ǡ
ͶͷͼȐǤ
ȋȌ ϐ Ȁ
ȏ Ͷ ȋͳȌ ǡ ʹͲͳͶȐǤ Ǧ Ȁ
Ȁ Ȁ Ȁ Ǥ
qualified as part of CSR expenditure. ȏ ǤͷȀͶͷͺͷ; ǡͶͷͺȐ
ȋȌ ϐ Ȁȋ ǡ
Land Acquisition Act etc.) would not count as CSR expenditure under the Companies Act. ȏ
ǤͷȀͶͷͺͷ; ǡͶͷͺǦ ȐǤ
provision of materials and the involvement of time, skills and enthusiasm of employees. The Group
contributes to a very wide range of social, cultural, educational, sporting, charitable and emergency
assistance programmes. The Company works in partnership with the Government, national and international
development organisations, local NGOs and the community to ensure sustainable development. The
ǣ
• Tata Steel Corporate Social Responsibility and Accountability Policy l Corporate Social Responsibility
• Tata Steel Rural Development Society (TSRDS)
• Tribal Cultural Society (TCS)
• Tata Steel Family Initiatives Foundation (TSFIF)
• Tata Steel Skill Development Society (TSSDS)
• Education
• Medical Services
• Urban Services
• Sports Department
• Tata Steel Adventure Foundation
• JUSCO
• Other societies like Ardeshir Dalal Memorial Hospital, Blood Banks, Kanti Lal Gandhi Memorial Hospital
etc.)
• Tata Relief Committee
ǣ ǡǡ
ANNEXURES
[Annexure - I]
Format for the Annual Report on CSR Activities to be included in the Board's Report For Financial Year
Commenced Prior To 1st Day of April, 2020
1. A brief outline of the company's CSR policy, including overview of projects or programs proposed to be
undertaken and a reference to the web-link to the CSR policy and projects or programs.
2. The Composition of the CSR Committee.
͵Ǥ ϐ ϐ
4. Prescribed CSR Expenditure (two per cent of the amount as in item 3 above)
ͷǤ ϐ Ǥ
ȋȌϐ Ǣ
(b) Amount unspent, if any;
ȋ Ȍ ϐ Ǥ
296 Lesson 7 • EP-CL
ȗ ǣ
Ǥ ϐ
ϐ ǡ
amount in its Board report.
7. A responsibility statement of the CSR Committee that the implementation and monitoring of CSR
Policy, is in compliance with CSR objectives and Policy of the company.
[Annexure -II]
Format for The Annual Report on CSR Activities to be included in the Board's Report for Financial Year
Commencing on or After 1st Day of April, 2020
1. Brief outline on CSR Policy of the Company.
ʹǤ ǣ
3. Provide the web-link where Composition of CSR committee, CSR Policy and CSR projects approved by the
board are disclosed on the website of the company.
4. Provide the details of Impact assessment of CSR projects carried out in pursuance of sub-rule (3) of rule 8 of
the Companies (Corporate Social responsibility Policy) Rules, 2014, if applicable (attach the report).
5. Details of the amount available for set off in pursuance of sub-rule (3) of rule 7 of the Companies (Corporate
ȌǡʹͲͳͶϐ ǡ
Sl. No. Financial Amount available for set-off from Amount required to be set-off for the
Year ϐ ȋȌ ϐ ǡȋȌ
1
2
3
Total
(iv) Surplus arising out of the CSR projects or programmes or activities of the
ϐ ǡ
(v) ϐ ȏȋȌǦȋȌȐ
Sl. Pre- Amount Amount spent Amount transferred to any fund Amount remaining
No. ceding transferred to in the reporting specified under Schedule VII as per to be spent in suc-
Financial Unspent CSR Financial Year section 135(6), if any. ceeding financial
Year. Account under (in Rs.). Name Amount Date of years. (in Rs.)
section 135 (6) of the (in Rs). transfer.
(in Rs.) Fund
1.
2.
3.
Total
10. In case of creation or acquisition of capital asset, furnish the details relating to the asset so created or
ϐ ȋǦȌǤ
(a) Date of creation or acquisition of the capital asset(s).
(b) Amount of CSR spent for creation or acquisition of capital asset.
ȋ Ȍ ϐ
registered, their address etc.
(d) Provide details of the capital asset(s) created or acquired (including complete address and location
of the capital asset).
ͳͳǤ ȋȌǡ ϐ
section 135(5).
ȀǦ
ȀǦ ȀǦ
ȏ ϐ (d)
ȋ ϐ (Chairman CSR Committee).
of sub-section (1) of section 380 of
Managing Director or Director).
the Act] (Wherever applicable).
01. 13.11.2019 Apurvanatvar & Company India (P) Limited vs. Registrar of NCLT,
Companies, Mumbai Mumbai
Company Violated provisions of Section 135 read with Section 134(3) of the Companies Act, 2013
Background
Timeline of Events
Pursuant to the receipt of the Notice, the Company sent a reply dated December 16, 2017 to Registrar of
Companies enclosing the Directors Report of the Company dated September 2, 2015, issued by the Board of
Directors of the Company in respect of the Company’s activities for the F.Y. 2014-15.
Thereafter, on February 01, 2018, the Applicants received another notice from the ROC dated January 3, 2018
ϐ ϐ
compound the above-mentioned offence committed by them as per the procedure prescribed, under the
Companies Act, 2013.
It is submitted that as per Section 135 of the Act, the Company was required to spend an amount of Rs. 5,26,047.30
towards its Corporate Social Responsibility objectives in the F.Y. 2015-16. In compliance with the provisions of
ǡǤ͵ͷǡͲͺǡͷͲͲȀǦ
in the F.Y. 2015-16. However, in spite of having spent the requisite amount, the Company inadvertently did not
attach the CSR Policy of the Company to the Director’s Report for the F.Y. 2015-2016. In order to rectify the
inadvertent error, the Company has written to the ROC vide letter dated February 9, 2018, whereby the Company
has informed the ROC of the said violation of Section 134(3)(0) of the Act.
It is further submitted that to make default good the Board in its Board Meeting held of July 18, 2014 framed the
ǡʹͲͳ͵Ǥ
It is further submitted that the Company had constituted the CSR Committee, framed the CSR Policy as per
the provisions of the Act and made the necessary disclosures as required under Section. 134 (3) (o) in the
Board of Directors Report for the F. Y. 2015-16. Consequently, the Default has been made good.
Section 135(5)
According to the provision of Section135 (5) of the Act, the Board of the Company was required to spend, in
ϐ ǡʹΨϐ
ϐ ǡ ȋȌ ǡ
having net worth of Rs. Five Hundred Crore or more, or turnover of Rs. One thousand crore or more, or having
ϐǤ ǡ Ǥ
Section 134(3)(o)
Further the provision of Section 134 (3) (o) provides that, if company fails to comply with the provision of
Section 135 (5), then the Board in its report shall specify the reasons for not spending the amount.
Judgment
The Bench gone through the pleadings on record and the submissions made by the ApurvaNatvar Parikh & Co
Lesson 7 • Corporate Social Responsibility 301
ȀǤ
ͳ͵Ͷȋ͵ȌȋȌ ǡȀ ͳ͵ͶȋͺȌ ǡ
2013.
The ROC has also reported that, the Company has made the said default good by formulating the Corporate
Social Responsibility (CSR) Policy, constituting the CSR Committee and giving the requisite disclosure as per the
relevant provisions of the Act, in the Board Report of the Company for the F.Y. 2015-16 and onwards.
The bench considered the entire records, pleadings of the Applicants and submissions of the Ld. Authorised
ͳǡͲͲǡͲͲͲȀǦǤͳǡͲͲǡͲͲͲȀǦ
the Directors of the Company that the Compounding fee should be paid within a period of three weeks from the
date of order in the account of “Prime Minister’s National Relief Fund.”
ǣȀȀ ǤǤȀȀȀϔȀϔǦǦȀάͶͷͷǦͺͺͷǦǦͶͷͽ;ǦάͶάͶάͶ
άͼάͶάͶ άͶ Ǥ
02. 28/11/2018 In the Matter of M/s. Hira Power and Steels Limited NCLT, Mumbai
Judgment
The Bench said that, this provision regarding CSR is newly incorporated in the Statute and thereafter number of
ϐ
recorded by the Company or its Directors. It is also noticed that the Company had made the default good by
constituting the CSR committee and by furnishing declaration in the Director’s Report for the F. Y. 2015-16.
Ȁ ϐ
ϐ ϐ Ǥǡ
to be contributed for charitable purpose as CSR responsibility can be intimated to the concerned authorities
ǤǤϐ ϐ Ǥ
ǤͳͲǡͲͲͲȀǦ ȀȋǤǤǤͷͲǡͲͲͲȀǦȌ
on the Company.
ǣȀȀ ǤǤȀȀȀϔȀϔǦǦȀ άͶάͶάͶάͶάͶͽͶͽǦ
Ͷͷ;άͶάͶάͶ;ǤͷͷǤͶͷ;άͶ Ǥ
03. 01.07.2019 M/S Shri Santosh Meenakshi Textiles (P) Ltd. vs. Roc, Tamilnadu, NCLT,Chennai
Coimbatore
ϐϐ ǡ
same and issued a Show Cause Notice to the Company as to why they have not complied with Section 135(1),
ͳ͵ͷȋͷȌ ͳ͵Ͷȋ͵ȌȋȌ ǡ ʹͲͳ͵Ǥ ϐ
NCLT, Chennai under Section 131 of the Companies Act, 2013 and the NCLT passed the impugned order wherein
it held that – “…… Petitioner Company is liable to spend the amount on account of CSR for FY 2014-15 taking into
ϐ ʹͲͳ͵ǦͳͶǥ.”
Issues involved
ϐolved as whether the appellant is covered under Section 135(1) of the Act or not.
ǯ ϐǤͷǡͺǡͲǡͲʹ͵ȀǦ ʹͲͳ͵ǦͳͶ
which is apparently more than Rs. 5 crores i.e. threshold limited prescribed under Section 135(1) of the Act.
Therefore, the company is covered under Section 135(1) of the Act and as such appellant was liable to constitute
Corporate Social Responsibility Committee of the Board in the year 2014-15. Section 135(5) of the Act stipulates
that Board of every company who comes under Section 135(1) of the Act shall ensures that the company spends
ʹΨϐ
ϐ Ǥϐ ͳͻͺ ǡ
ʹͲͳ͵ϐǮϐǯǤ
Further, NCLAT examines the next issue argued by the appellant that even if it is the company is deemed to be
Lesson 7 • Corporate Social Responsibility 303
covered under Section 135(1) of the Act, then also it is not liable to expend any sum towards CSR in as much
ʹͲͳͳǦʹͲͳʹʹͲͳʹǦͳ͵ϐ
the three FY comes in negative. NCLAT disagrees with the observations of the NCLT which directed the appellant
ʹͲͳͶǦͳͷ ϐ
tax for the FY 2013-14 as it is clearly against the mandate of law that the amount to be spent is to be at least 2%
ϐ ϐ
pursuance to its CSR Policy. NCLAT observes that the calculations submitted by the appellant shows that in the
ϐǤͳǡ͵ͺǡͻǡͷͻͷȀǦϐ
ǤͶǡʹ͵ǡͳͻͺȀǦ ϐ
preceding years.
NCLAT observed that that the appellant has resorted to deducting the losses twice over to somehow arrives at a
ϐ ʹͲͳͶǦͳͷǤ
ϐ
NCLT will not be applicable.
NCLAT further observes that the company is a defaulter for spending an amount on CSR activities during the
year 2014-15 since company has not constituted the CSR Committee and no proof substantiating the amount
spent by the company on CSR activities has been placed.
Judgment
NCLAT passes an order modifying the impugned order holding that the appellant is liable to constitute Corporate
ͳ͵ͷȋͳȌʹͲͳͶǦͳͷϐ
in the preceding year was more than Rs.5 crores; and further prescribes a method of calculation for the purpose
of Section 135(5).
NCLAT holds appellant liable to constitute CSR committee of the Board in terms of Section 135(1) as the net
ϐ ͳ͵ͷȋͳȌ Ǣ
ϐ ͳ͵ͷȋͷȌǤ
ǣȀȀ Ǥ ǤȀȀȀͿͶͻ;ͼ;;;ͿͻͷͿͷͶͶͷǤ
LESSON ROUND-UP
• As per section 135 of the Companies Act 2013, the CSR provision will be applicable companies which
ϐ ϐ ǣǦ
» ϐ ǡ
» Companies having turnover of rupees one thousand crore or more or
» ϐϐ
• ǡϐ ǡ
ϐ ϐ
years, in pursuance of its Corporate Social Responsibility Policy. This amount will be CSR expenditure
• It is mandatory for companies to disclose in Board’s Report, an annual report on CSR.
304 Lesson 7 • EP-CL
GLOSSARY
Registered Trust As per section 3 of Indian Trust Act 1882 “A Trust is an obligation annexed to the
ǡ ϐ
ǡ ǡ ϐ ǡ
another and the owner”.
A trust may either be a private trust or public trust.
As per section 5 of the Indian Trusts Act, a private Trust in relation to an immovable
property must be created by a non-testamentary instrument in writing, signed by
the author of the trust or the trustee and registered(under Section 17 of Indian
Registration Act) . Thus, registration of a trust is necessary when it is declared by a
non-testamentary instrument. This registration would still be required, even if the
instrument declaring the trust is exempt from registration under the Indian
Registration Act. In case of a Private Trust declared by a will, registration will not be
necessary, even if it involves an immovable property. Registration will not be
required, of a trust in relation to movable property. In case of Public Trust, whether
in relation to movable property or an immovable property and whether created
under a will or inter vivos, registration is optional but desirable.
Registered Society ϐ ǡ ǡ
literature or else for diffusion of purposeful knowledge or charitable purposes of
political education. According to section 20 of The Society Registration Act, 1860 a
ǣ
• ϐ
• Diffusion of political education
• Grant of charitable assistance
• Promotion of science and literature
• Creation of military orphan funds
• Maintenance or foundation of galleries or public museum
• Maintenance or foundation of reading rooms or libraries
• Promotion or diffusion or instruction of useful knowledge
Un- registered societies have certain disadvantages.
Section 8 Company A limited company can be incorporated under section 8 of Companies Act, 2013
ǣ
(a) It has in its objects the promotion of commerce, art, science, sports,
education, research, social welfare, religion, charity, protection of
environment or any such other object;
ȋȌ ϐǡǡ Ǣ
and
(c) it intends to prohibit the payment of any dividend to its members.
Importantly, these are incorporated with the object of promotion of commerce, art,
science, sports, education, research, social welfare, religion, charity, protection of
environment or any such other object.
ϐ ͳ͵ͷ ǡʹͲͳ͵̶ϐ̶
such sums as may be prescribed, and shall be calculated in accordance with the
provisions of section 198.
Lesson 7 • Corporate Social Responsibility 305
Provided further that in case of a foreign company covered under these rules, net
ϐϐ ϐ
in terms of clause (a) of sub-section (1) of section 381 read with section 198 of the Act.
TEST YOURSELF
ȋ ǤȌǤ
1. Is every company required to constitute CSR committee? Explain the role and function of CSR Committee
constituted by the company.
2. ABC Ltd. Failed to contribute towards CSR despite falling under the category of section 135(1). Explain
the consequences.
͵Ǥ Ȁ ǫ
ͶǤ ǫ
5. In case of companies having multi-locational operations, which local area of operations should the
company choose for spending the amount earmarked for CSR operations?
6. Whether resolution can be pass by Circulation resolution by CSR Committee?
Ǥ ǤǤͶͲͲ ǡϐ ʹͲͳͻǦʹͲǤͳǡʹͲͲ
ϐϐ ͵ͳ ǡʹͲʹͲǤʹͷ Ǥ
Company Secretary to prepare a check-list of compliances with respect to Corporate Social Responsibility
(CSR) as per the provisions contained in the Companies Act, 2013. Also state the circumstances in which
a company is required to constitute a CSR Committee?
8. Can CSR Funds to be utilized to fund Government Scheme?
Regulatory Framework
Rule 5 Companies exempted under the Companies (Indian Accounting Standards) Rules, 2015
Rule 12 Duties and Powers of the Company’s Auditor with Reference to the Audit of the Branch and
the Branch Auditor
Rule 13 Reporting of Frauds by Auditor and Other Matters
INTRODUCTION
Ǥǡ
Ǥǡ
Ǥ
Ǥ
ϐ
Ǥ
Ǥ ͳʹͺ ǡʹͲͳ͵ Ǥ
Ǥ
Maintenance of Books of account in electronic form (Rule 3 of the Companies (Accounts) Rules, 2014)
• Ǥ
accounts or other relevant books and papers maintained in electronic mode shall remain accessible in India
so as to be usable for subsequent use [“The Companies (Accounts) Rules, 2014 hereinafter referred in this
DzdzȐȋ͵ȋͳȌȌǤ
• ϐ ͳǡʹͲʹʹǡ
software for maintaining its books of account, shall use only such accounting software which has a feature of
recording audit trail of each and every transaction, creating an edit log of each change made in books of
account along with the date when such changes were made and ensuring that the audit trail cannot be
Ǥ
were originally generated, sent or received, or in a format which shall present accurately the information
generated, sent or received and the information contained in the electronic records shall remain complete
ȋ͵ȋʹȌȌǤ
• ϐ
ȋ͵ȋ͵ȌȌǤ
• The information in the electronic record of the document shall be capable of being displayed in a legible form
ȋ͵ȋͶȌȌǤ
• There shall be a proper system for storage, retrieval, display or printout of the electronic records as the Audit
Committee, if any, or the Board may deem appropriate and such records shall not be disposed of or rendered
ǡǣ
Provided that the back-up of the books of account and other books and papers of the company maintained in
electronic mode, including at a place outside India, if any, shall be kept in servers physically located in India
ȋ͵ȋͷȌȌǤ
• ϐϐ Ǧ
(a) the name of the service provider;
(b) the internet protocol address of service provider;
(c) the location of the service provider (wherever applicable);
(d) where the books of account and other books and papers are maintained on cloud, such address as
ȋ͵ȋȌȌǤ
312 Lesson 8 • EP-CL
Penalty
ͳʹͺȋȌ ȋǤǤǡǡ ǤȌ
ǡ ǡϐ ϐ
ϐǤ
ϔ ϔ
ǡ
ǡͶͷǤ
• Managing Director
• Ǧ ϐ
• CFO
• Other person of a company charged by the Board with the duty of complying with the requirements of section
ͳʹͻǤ
ϐ ǡ Ǥ
Penalty
The Central Government may, on its own or on an application by a class or classes of ǡϐ ǡ
exempt any class or classes of companies from complying with any of the requirements of this section 129 or the
rules made thereunder, if it is considered necessary to grant such exemption in the public interest and any such
exemption may be granted either ϐϐ Ǥ
In case persons referred to in section 129 (7) fail to take reasonable steps to secure compliance or contravene
provisions of Section 129 of the Act, they shall in respect of each offence be punishable with imprisonment for a
ϐ ϐ
ϐǤ
(i) it is a wholly-owned subsidiary, or is a partially-owned subsidiary of another company and all its other
members, including those not otherwise entitled to vote, having been intimated in writing and for which the
proof of delivery of such intimation is available with the company, do not object to the company not presenting
ϐ Ǣ
(ii) it is a company whose securities are not listed or are not in the process of listing on any stock exchange,
whether in India or outside India; and
ȋȌ ϐ ϐ
Ǥ
PERIODICAL FINANCIAL RESULTS [SECTION 129A]
The Central Government may, require such class or classes of unlisted companies, as may be prescribed,—
ȋȌ ϐ Ǣ
ȋȌ ϐ
results in such manner as may be prescribed; and
ȋ Ȍ ϐ
Ǥ
ȋȌ ǡͶͶǤϔ ;ǡͶͶǢ
ǡͶͷǤ
Provided that where a direction has been issued by the Central Government under the proviso to sub-section of
section 128 for keeping of books of account for a period longer than eight years, the books of account may be
Ǧ Ǥ
Case Law:
In the matter of Hari Sankaran (Appellant) vs. Union of India & Ors. (Respondents) (The Supreme Court
of India) dated 04/06/2019
ǦǦ ϐ Ƭ
The Supreme Court of India inter-alia observed that the Tribunal may, under Section 130 of the Act, pass an
order of re-opening of accounts if it is of opinion that (i) the relevant earlier accounts were prepared in a
fraudulent manner; or (ii)the affairs of the company were mismanaged during the relevant period casting a
ϐ Ǥǡϐ
ͳ͵Ͳ ϐ Ǥ
Ƭ ǡ ϐ
ʹͶͳȀʹͶʹ
considering the fact that the Central Government has entrusted the investigation of the affairs of the company to
SFIO in exercise of powers under Section 242 of the Companies Act, the Apex Court observed that it cannot be
ͳ͵Ͳ ϐǤ
The Supreme Court of India upheld the order passed by NCLAT under Section 130 of the Companies Act for re-
Ǧ ϐ Ƭ
Ǣ Ƭ Ƭ ϐ
ǡǤ ʹͲͳʹǦͳ͵ ʹͲͳǦͳͺ Ǥ
Exceptions:
(b) where shareholding is held otherwise than by dematerialised format, to such members who have positively
consented in writing for receiving by electronic mode; and
ȋ Ȍ ϐ ʹͲ
ǡʹͲͳ͵ǡ Ǥ
ϐ ϐ
statements, if any, and all other documents required to be attached thereto, on its website, which is maintained
Ǥ
• According to Regulation 29 of SEBI (LODR) Regulations,2015, the listed entity shall give prior intimation
ϐ Ǥǡ
ǡǡ Ǥ
• ϐ ȋ
Ȍǡ Ǥ
• Every listed company having a subsidiary or subsidiaries shall place separate audited accounts in respect
ǡǤ
• A listed company which has a subsidiary incorporated outside India (herein referred to as “foreign
subsidiary”)—
ȋȌ ϐ
under any law of the country of its incorporation, the requirement of this proviso shall be met if
ϐ
company;
ȋȌ ϐ
ϐ ǡ
ϐ
ϐ ǡ ϐ
Ǥ
Right to inspect
Every company shall be under an obligation to allow every member or trustee of the holder of any debentures
ϐ
ϐ Ǥ
ϐ
ϐ ϐ ǡǡǯ
ϐ
ϐ ʹͳ
Ǥ
Penal provisions
If any default is made in complying with the provisions of Section 136 of the Act, the company shall be liable to a
penalty of –
ȋȌ Ǧϐ
ȋȌ ϐ ϐǤ
Lesson 8 • Accounts, Audit and Auditors 319
The company shall also attach the accounts of subsidiaries incorporated outside India and which have not
ϐ Ǥ
Provided also that in the case of a subsidiary which has been incorporated outside India (herein referred to as
DzdzȌǡ ϐ
ϐ ǡ
ȋ Ȍ ϐ ϐ
ϐ ǡ
ϐ Ǥ
ǡϐ
the documents required to be attached, duly signed along with the statement of facts and reasons for not holding
ϐ
annual general meeting should have been held and in such manner, with such fees or additional fees as prescribedǤ
ϐ ǡϐ
ϐ ȋȌ
ϐ ϐ ȏͳʹȋʹȌ
ȋ ȌǡʹͲͳͶȐǤ
Rule 3 of the Companies (Filing of Documents and Forms in XBRL) Rules, 2015
Objective
The objectives of National Financial Reporting Authority inter alia ǣ
(1) Make recommendations to the Central Government on formulation of accounting and auditing policies and
standards for adoption by companies, class of companies or their auditors;
(2) Monitor and enforce the compliance with accounting standards, monitor and enforce the compliance with
auditing standards;
Lesson 8 • Accounts, Audit and Auditors 321
(3) Oversee the quality of service of professionals associated with ensuring compliance with such standards and
suggest measures required for improvement in quality of service, and
ȋͶȌ Ǥ
Constitution of NFRA
The constitution of National Financial Reporting Authority (NFRA), which is supposed to be constituted as an
oversight regulatory body to recommend accounting and auditing standards, is governed by sub -section and (4) of
section 132 of the Ǥ ǡ
(i) It consists of a chairperson, who shall be a person of eminence & having expertise in accountancy, auditing,
ϐ ǡǡ ǡ
ͳͷ ǦǦ Ǥ
(ii) Each division of the National Financial Reporting Authority shall be presided over by the Chairperson or a
ǦǤ
(iii) There shall be an executive body of the National Financial Reporting Authority consisting of the Chairperson
Ǧ ϐ Ǧ ȋʹȌ
ͳ͵ʹ ȏ ȋȌȐǦ ȋͶȌ ͳ͵ʹ Ǥ
terms and conditions and the manner of appointment of the chairperson and members shall be such as
Ǥ
ȋȌ ϐ
Ǥ Ȃ
ϐ ϐ
Ǥ
(v) The Central Government may appoint a secretary and such other employees as it may consider necessary for
ϐ ǡ
ʹͲͳ͵ Ǥ
ȋȌ ϐ ǡ
ǡϐǤ
(vii) The National Financial Reporting Authority shall meet at such times and places and shall observe such rules
Ǥ
Audit of NFRA
The accounts of the National Financial Reporting Authority is required be audited by the Comptroller and Auditor
ϐ ϐ
Auditor General of India together with the audit report thereon shall be forwarded annually to the Central
Ǥ
ϐ
ϐ
thereof to the Central Government and the Central Government shall cause the annual report and the audit report
Ǥ
The National Financial Reporting Authority have the power to investigate, either or on a reference made
to it by the Central Government, for such class of bodies corporate or persons, in such manner as prescribed into
322 Lesson 8 • EP-CL
ϐ ǡ
ǡͳͻͶͻǤ
Provide that no other institute or body shall initiate or continue any proceedings in such matters of misconduct
where the National Financial Reporting Authority has initiated an investigation under Section 132 of the Companies
ǡʹͲͳ͵Ǥ
The Authority shall have powers as are vested in a civil court under Code of Civil Procedure, 1908 in respect of
ǣ
ͳǤ
ϐ Ǣ
ʹǤ Ǣ
͵Ǥ ǡ Ǣ
ͶǤ Ǥ
ǡǣ
Ǥ ǣ
ȋȌ ϐ Ǣ
ȋȌ ϐ ϐǤ
Ǥ ϐǣ
ȋȌ ϐ
statements or internal audit of the functions and activities of any company or body corporate; or
(ii) performing any valuation as provided under section 247, for a minimum period of six months or such
higher period not exceeding ten years as may be determined by the National Financial Reporting
Ǥ
Applicability under Rule 3 of the Companies (Indian Accounting Standards) Rules, 2015
ͳǤ ȋ Ȍ • ϐ
ϐȋ 4(1) of the Companies (Indian Accounting
Accounting Standards) Rules, 2015 ȌǡʹͲͳͷǤ
ʹǤ ϐ • Applicable to the companies other than the classes
to the Companies (Accounting Standards) ϐͶȋͳȌ
ǡʹͲͲǤ ȋ ȌǡʹͲͳͷǤ
Applicability w.e.f.
Voluntary basis Rule 4(1)(i)- Any company and its holding, subsidiary,
joint venture or associate company may comply with the
ȋ Ȍ ϐ
statements for accounting periods beginning on or after
1st April, 2015, with the comparatives for the periods
͵ͳ ǡʹͲͳͷǡǤ
Mandatory basis for the accounting periods beginning Rule 4(1)(ii)- The following companies shall mandatorily
on or after April 1, 2016 with the comparatives for the ǣǦ
periods ending on 31st March, 2016, or thereafter
• Companies whose equity or debt securities are
listed or are in the process of being listed on any
stock exchange (except SME Exchange) in India or
ϐ
hundred crore or more;
• Unlisted companies having net worth of rupees
ϐ Ǣ
• holding, subsidiary, joint venture or associate
Ǥ
Mandatory basis for the accounting periods beginning Rule 4(1)(iii)- The following companies shall comply Ind
on or after April 1, 2017, with the comparatives for ǣǦ
the periods ending on 31st March, 2017, or thereafter • Companies whose equity or debt securities are
listed or are in the process of being listed on any
stock exchange (except SME Exchange) in India or
outside India and having net worth of less than
ϐ Ǣ
• Unlisted companies having net worth of rupees
ϐ
ϐ Ǣ
• holding, subsidiary, joint venture or associate
Ǥ
324 Lesson 8 • EP-CL
In case of NBFCs, for accounting periods beginning Rule (4)(1)(iv)(a)The following NBFCs shall comply with
on or after the 1st April, 2018, with comparatives for ȋȌǣ
the periods ending on 31st March, 2018, or
ȋȌ ϐ
Ǥ
or more;
(B) holding, subsidiary, joint venture or associate
ȋȌǤ
In case of NBFCs, for accounting periods beginning on Rule (4)(1)(iv)(b)The following NBFCs shall comply with
or after the 1st April, 2019, with comparatives for ȋȌǣ
͵ͳ ǡʹͲͳͻǡǤ
(A) NBFCs whose equity or debt securities are listed or
in the process of listing on any stock exchange in
India or outside India and having net worth less
ϐ Ǣ
(B) NBFCs, that are unlisted companies, having net worth
Ǧϐ
ϐ Ǣ
(C) holding, subsidiary, joint venture or associate
companies of companies covered under item or
ȋȌǤ
Companies exempted under Rule 5 of the Companies (Indian Accounting Standards) Rules, 2015
The Companies (Indian Accounting Standards) Rules, 2015 shall not be applicable on Banking Companies and
Ǥ ϐ
ȋ Ȍ ȋ Ȍ Ǥ
ǡ ϐ
ϐ ǡ
Ǥ
The Companies(Accounting Standards) Rules, 2021 for Small and Medium sized Companies
ϐ ʹ͵ǡʹͲʹͳϐȋ ȌǡʹͲʹͳ
for Small and Medium sized companies (SMCs), with which the turnover and borrowing limits has been revised
Ǥ
ϐDzdzȋȌǡ Ǧ
(i) whose equity or debt securities are not listed or are not in the process of listing on any stock exchange,
whether in India or outside India;
ȋȌ ǡϐ Ǣ
ȋȌ ȋ Ȍ ϐ
immediately preceding accounting year;
ȋȌ ȋ Ȍ ϐ
during the immediately preceding accounting year; and
(v) which is not a holding or subsidiary company of a company which is not a small and medium-sized
Ǥ
ǤǦ ǡ ǡ
ϔ Ǥ
The main objective was to mirror the existing accounting standards under the Companies Act, 1956, in the 2013
ǡǡϐǡ ǡ
Ǥ
Lesson 8 • Accounts, Audit and Auditors 325
Ƭϐ
ͳͶͳȋͳȌƬȋʹȌ ϐ ǣǦ
ȋȌ ȋȌ ϐ
Ǥ
ȋȌ ϐ ȋȌ ǡ
ϐǤ
ϐ
Section 141 (3) of the Act read with Rule 10 prescribed the following persons shall not be eligible for appointment
ǡǣ
• A body corporate, except LLP;
• ϐ Ǣ
• ǡǡϐ loyee of the company;
• Ȁ ǡ
subsidiary, or of its holding or associate company or a subsidiary of such holding company ;
» ǡ
Ǥ
Ǥ
» In the event of acquiring any security or interest by a relative, above the threshold prescribed, the
ϐ
Ǥ
» A person who or whose relative or partner is indebted to the company or its subsidiary or its holding or
ǡ ϐ
Ǥ
» A person who or whose relative or partner has given a guarantee or provided any security in connection
with the indebtedness of any third person to the company, or its subsidiary, or its holding or associate
company or a subsidiary of such holding company, in excess of one lakh rupees shall not be eligible for
Ǥ
326 Lesson 8 • EP-CL
The term “business relationship” shall be construed as any transaction entered into for a commercial purpose,
except –
• commercial transactions which are in the nature of professional services permitted to be rendered by an
ϐ ǡ ͳͻͶͻ
regulations made under those Acts;
• commercial transactions which are in the ordinary course of business of the company at arm’s length
price-like sale of products or services to the auditor, as customer, in the ordinary course of business, by
companies engaged in the business of telecommunications, airlines, hospitals, hotels and such other
Ǥ
• A person whose relative is a director or is in the employment of the company as a director or KMP;
• ϐ
as its auditor, if such persons or partner is at the date of such appointment or reappointment holding
appointment as auditor of more than twenty companies;
In case of private company a person is ineligible to be appointed as an auditor, if such person or partner is at the
date of such appointment or reappointment holding appointment as auditor of more than twenty companies
other than one person companies, dormant companies, small companies and private companies having paid-up
Ǥ
• A person who has been convicted by a court of an offence involving fraud and a period of ten years has not
elapsed from the date of such conviction;
• A person who, directly or indirectly, renders any service referred to in section 144 to the company or its
Ǥ
Explanation. – For the purposes of this clause, the term “directly or indirectly” shall have the meaning assigned
ͳͶͶǤ
According to section 141 (4) of the Act where a person appointed as an auditor of a company incurs any of the
ϐ ǡ ϐ
ϐ Ǥ
ǡϐǡϐ
ϐ
Ǥ
If at any annual general meeting, no auditor is appointed or re-appointed, the existing auditor shall continue to be
Ǥ
Conditions for Appointment and Notice to Registrar [Rule 4 of the Companies (Audit and Auditors)
Rules, 2014
As per second proviso of section 139(1) of the Act read with rule 4 stipulates that written consent of the auditor
Ǥ ϐ ǣ
ȋȌ Ȁϐ ϐ ǡ
Chartered Accountants Act, 1949 and the rules or regulations made thereunder;
(b) the proposed appointment is as per the term provided under the Act;
(c) the proposed appointment is within the limits laid down by or under the authority of the Act;
ȋȌ ϐϐ
ǡ ϐ ǡ Ǥ
ϐ ϐ ͳͶͳ Ǥ
ϐ
appointment with the Registrar in Form ADT-1 ͳͷ Ǥ
The First auditor shall be appointed by the Comptroller and Auditor General within 60 days from the date of
incorporation and in case of failure to do so, the Board shall appoint auditor within next 30 days and on failure to
do so by Board of Directors, it shall inform the members, who shall appoint the auditor within 60 days at an
ȋ Ȍǡ ϐ ϐ Ǥ
In case of subsequent auditor for existing Government Companies, the Comptroller & Auditor General shall appoint
ͳͺͲ ϐ
Ǥ
Casual Vacancy due to Approved by Members Approved by Members By CAG within 30 days Or
within 3 months of within 3 months of
• Resignation recommendation of recommendation of Board By BOD within next 30
ϐ ϐ days
Ǥ Ǥ
ȑ ͳͶͲ ȍͳȎȒ ȍ
ǡʹͲͳͶȒ
ͳ͵ͻ ϐ
only by a special resolution of the company, after obtaining the previous approval of the Central Government in that
Ǥ
ǡ ͳ͵ͻ ǡϐ
of the term only by –
ȋȌ ϐ Form ADT-2 within 30
days of resolution passed by the Board
(ii) The company shall hold the general meeting within sixty days of receipt of approval of the Central Government
Ǥ
ȋȌ Ǥ
RESIGNATION OF AUDITOR [SECTION 140(2), 140 (3) AND RULE 8 OF THE COMPANIES (AUDIT
AND AUDITORS) RULES, 2014]
ϐ ADT-3 indicating the reasons and
ǣ
332 Lesson 8 • EP-CL
Ǥdz
Ǥ
are legally enforceable and also ascertain the valuation of securities to see whether the loan is fully secured
Ǥ
(b) Transactions represented by book entries
Auditor is required to inquire “whether the transactions of the company which are represented merely by
dzǤ
transactions and determine whether such transactions have actually taken place and are not prejudicial to
Ǥ
(c) Sale of investments
Auditor should inquire, “whether so much of the assets of the company (except an investment company or a
banking company) as consists of shares, debentures and other securities, have been sold at a price less than
dzǤ
ϐ ϐ
considered to be reasonable, having regards to the circumstances of each case, no further reporting is
Ǥ
(d) Loans and Advances shown as deposits
Dz dzǤ
The auditor must inquire in respect of all the deposits shown by the company and satisfy himself that the
Ǥ
(e) Charging of Personal expenses to revenue account
Dz dzǤ
ϐ
Ǥ
(f) Allotment of shares for cash
Auditor should inquire as to “whether cash has actually been received in respect of shares stated to have been
allotted for cash and if no cash has actually been so received, whether the position as stated in the account
ǡdzǤ ǡ
respect of shares allotted in cash by the company that cash has actually been received in respect of such
Ǥ
ǡ
ǡ ǡǤ
ǡϐ
Ǥ Ǥǡ
a holding company shall have access to the books of all of its subsidiary and associate companies for the
ϐ
Ǥ
POWERS OF COMPTROLLER AND AUDITOR GENERAL OF INDIA IN CASE OF GOVERNMENT
COMPANY [SECTION 143 (5) to 143 (7)]
In the case of a Government company or any other company owned or controlled, directly or indirectly, by the
Central Government, or by any State Government or Government, or partly by the Central Government and partly
by one or more State Government, the Comptroller and Auditor General of India shall appoint the auditor under
sub-section (5) or sub-section (7) of section 139 of the Act, and direct such auditor the manner in which the accounts
of the company are required to be audited and thereupon the auditor so appointed shall submit a copy of the audit
report to the Comptroller and Auditor General of India which, among other things, include the directions, if any,
334 Lesson 8 • EP-CL
issued by the Comptroller and Auditor General of India, the action taken thereon and its impact on the accounts and
ϐ Ǥ
ϐ
Ͳ ȀͳͶ͵ȋͷȌǤ
Any comments given by the CAG upon, or supplement to, the audit report shall be sent by the company to every
ϐ Ȁͳ͵ȋͳȌ
Ǥ
ǡǡ Ȁͳ͵ͻȋͷȌͳ͵ͻ
(7) and the provisions of section 19A of the Comptroller and Auditor General’s (Duties, Powers and Conditions of
Ȍ ǡͳͻͳǡ Ǥ
The National Company Law Appellate Tribunal (NCLAT) held that the auditor cannot be debarred for 5 years
under the Companies Act, 2013 in the absence of evidence supporting fraudulent intentions, in the matter of
v. , ȋȌǤ;ͿͶͷͿǡ dated
ͳǡʹͲʹͲǤ
AUDIT REPORT
Section 143 (2) of the Act provides that auditor shall make a report to the members of the company on the accounts
ϐ Ǥ
The Audit report should take into consideration the provisions of this Act, the Accounting and Auditing standards and
ȀͳͶ͵ȋͳͳȌ Ǥ
ǡ ϐ
ǯϐ
ϐ ϐ Ǥ
ͳͶ͵ȋ͵Ȍ ǡǯ ǣ
(a) whether he has sought and obtained all the information and explanations which were necessary and if not,
ϐ Ǣ
(b) whether, in his opinion, proper books of account as required by law have been kept by the company so far as
appears from his examination of those books and proper returns adequate for the purposes of his audit have
been received from branches not visited by him;
(c) whether the branch audit report prepared by a person other than the company’s auditor has been sent
to him;
ȋȌ ǯ ϐ
with the books of account and returns;
ȋȌ ǡǡϐ Ǣ
ȋȌ ϐ
effect on the functioning of the company;
ȋȌ ϐ ͳͶȋʹȌǢ
ȋȌ ϐ ǡ
connected therewith;
ȋȌ ϐ ϐ
and the operating effectiveness of such controls;
Lesson 8 • Accounts, Audit and Auditors 335
(j) Rule 11 of the Companies (Audit and Auditors) Rules, 2014 prescribed that Auditor’s Report shall also include
ǡǣǦ
ȋȌ ǡǡϐ
ϐ Ǣ
(ii) whether the company has made provision, as required under any law or accounting standards, for
material foreseeable losses, if any, on long term contracts including derivative contracts;
(iii) whether there has been any delay in transferring amounts, required to be transferred, to the Investor
Education and Protection Fund by the company;
(iv) (a) Whether the management has represented that, to the best of it’s knowledge and belief, other
than as disclosed in the notes to the accounts, no funds have been advanced or loaned or
invested (either from borrowed funds or share premium or any other sources or kind of funds)
by the company to or in any other person(s) or entity(ies), including foreign entities
(“Intermediaries”), with the understanding, whether recorded in writing or otherwise, that the
Intermediary shall, whether, directly or indirectly lend or invest in other persons or entities
ϐ ȋDzϐ dzȌ
ǡ ϐ Ǣ
(b) Whether the management has represented, that, to the best of it’s knowledge and belief, other
than as disclosed in the notes to the accounts, no funds have been received by the company
from any person(s) or entity(ies), including foreign entities (“Funding Parties”), with the
understanding, whether recorded in writing or otherwise, that the company shall, whether,
ǡ ϐ
ȋDz ϐ dzȌ
ǡ ϐ Ǣ
(c) Based on such audit procedures that the auditor has considered reasonable and appropriate in
the circumstances, nothing has come to their notice that has caused them to believe that the
Ǧ ȋȌȋȌ ǦǤ
(v) Whether the dividend declared or paid during the year by the company is in compliance with section 123 of
the Companies Act, 2013;
ȋȌ ǡ ϐ ͳǡʹͲʹʹǡ
accounting software for maintaining its books of account which has a feature of recording audit trail (edit
log) facility and the same has been operated throughout the year for all transactions recorded in the software
and the audit trail feature has not been tampered with and the audit trail has been preserved by the company
Ǥ
The auditor is required to provide the reasons, where any of the matters required to be included in the Audit Report
ϐ Ǥȏ ͳͶ͵ȋͶȌȐ
The Companies (Auditor’s Report) Order, 2020 ϐ
ͳǡʹͲʹͳǤ
336 Lesson 8 • EP-CL
BRANCH AUDIT [SECTION 143(8) AND RULE 12 OF THE COMPANIES (AUDIT AND AUDITORS)
RULES, 2014]
ȏ ͳͶ͵ȋͳʹȌ ͳͶ͵ ȋͳͷȌ Ƭ ͳ͵
COMPANIES (AUDIT AND AUDITORS) RULES, 2014]
Section 143(12) of the Act, and Rule 13 provides that if an auditor of a company, in the course of the performance
of his duties as statutory auditor, has reason to believe that an offence of fraud, which involves or is expected to
involve individually an amount of rupees one crore or above, is being or has been committed against the company
ϐ ǡ Ǥ
ȋͳȌ ǣǦ
(a) the auditor shall report the matter to the Board or the Audit Committee, immediately but not later than
ǡǦϐǢ
(b) on receipt of such reply or observations, the auditor shall forward his report and the reply or
observations of the Board or the Audit Committee along with his comments (on such reply or
Ȍ ϐ
the date of receipt of such reply or observations;
(c) in case the auditor fails to get any reply or observations from the Board or the Audit Committee within
Ǧϐǡ
details of his report that was earlier forwarded to the Board or the Audit Committee for which he has
not received any reply or observations;
(2) The report shall be sent to the Secretary, Ministry of Corporate Affairs in a sealed cover by Registered Post
Ǧ ϐǤ
Lesson 8 • Accounts, Audit and Auditors 337
(3) The report shall be on the letter-head of the auditor containing postal address, e-mail address and contact
telephone number or mobile number and be signed by the auditor with his seal and shall indicate his
Ǥ
(4) The report shall be in the Form ADT-4.
ȋͷȌ ϐǡ
Audit Committee or to the Board immediately but not later than two days of his knowledge of the fraud and
ǣǦ
(a) Nature of Fraud with description;
(b) Approximate amount involved; and
ȋ Ȍ Ǥ
(6) The fraud reported to the Audit Committee or the Board during the year shall be disclosed in the Board’s
Report specifying the following-
(a) Nature of Fraud with description;
(b) Approximate Amount involved;
(c) Parties involved, if remedial action not taken; and
ȋȌ Ǥ
(7) The provision of this rule shall also apply, , to a Cost Auditor and a Secretarial Auditor during
ͳͶͺ ʹͲͶ Ǥ
No duty to which an auditor of a company may be subject to shall be regarded as having been contravened by reason
ͳͶ͵ȋͳʹȌǤ
If any auditor, cost accountant, or company secretary in practice does not comply with the provisions of section 143
(12), he shall,—
ȋȌ ǡϐǢ
(b) in case of any other company, be liable to a penalty of oneǤ
Rule 3 of the Companies (Cost Records and Audit) Rules, 2014 provides for the Application of Cost Record.
Ǧ ȋͳȌ ͳͶͺ Ǥ ǡ
ϐ ȋͶʹȌ ʹ ǡ ǡ
as telecommunication services, generation, transmission, distribution and supply of electricity, lron and Steel,
drugs and pharmaceuticals, fertilisers, having an overall turnover from all its products and services of rupees
ϐ ϐ ǡ
Ǥ
Section 148(2) of the Act, states that if the Central Government is of the opinion, that it is necessary to do so, it may,
338 Lesson 8 • EP-CL
by order, direct that the audit of cost records of class of companies, which are covered under sub-section of Section
148 of the Act and which have a net worth of such amount as prescribed or a turnover of such amount as prescribed,
ϐǤ
Rule 4 of the Companies (Cost Records and Audit) Rules, 2014 provides for Applicability for Cost Audit:-
ȋͳȌ ϐȋȌ͵ȋ ȌǡʹͲͳͶ ǤǤ
Regulated Sectors shall get its cost records audited in accordance with these rules if the overall annual
ϐ
ϐ
services for which cost records are required to be maintained under rule 3 is rupees twenty five crore or
Ǥ
ȋʹȌ ϐȋȌ͵ȋ ȌǡʹͲͳͶǤǤ
Non-Regulated Sectors shall get its cost records audited in accordance with these rules if the overall annual
ϐ
year is rupees one hundred crore or more and the aggregate turnover of the individual product or products
or service or services for which cost records are required to be maintained under rule 3 is rupees thirty
Ǥ
(3) The requirement for cost audit under these rules shall not apply to a company which is covered in rule 3,
and-
ȋȌ ǡ ǡ ϐ Ǣ
Section 148(3) of the Act, states that the audit under sub-section (2) shall be conducted by a Cost Accountant who
shall be appointed by the Board on such remuneration as may be determined by the members in such manner as
Ǥ
ȋͳͶȋƬȌǡǡʹͲͳͶȌ
(a) in the case of companies which are required to constitute an audit committee-
ȋȌ ǡ ǡ ϐ
practice, as cost auditor on the recommendations of the Audit committee, which shall also recommend
remuneration for such cost auditor;
(ii) the remuneration recommended by the Audit Committee under clause (i) shall be considered
ϐǢ
(b) in the case of other companies which are not required to constitute an audit committee, the Board shall
ϐ
ϐǤ
Further that no person appointed under section 139 as an auditor of the company shall be appointed for conducting
Ǥ
For the purposes of this sub-section, the expression “cost auditing standards” mean such standards as are issued by
the Institute of Cost Accountants of India, constituted under the Cost and Works Accountants Act, 1959, with the
Ǥ
Lesson 8 • Accounts, Audit and Auditors 339
Section 148(4) of the Act, states that an audit conducted under this section shall be in addition to the audit conducted
ͳͶ͵Ǥ
ͳͶͺȋͷȌ ǡ ϐ ǡ ϐ ǡ ǡ
auditors under this Chapter shall, so far as may be applicable, apply to a cost auditor appointed under this section
and it shall be the duty of the company to give all assistance and facilities to the cost auditor appointed under this
Ǥ
Further the report on the audit of cost records shall be submitted by the cost accountant to the Board of Directors
Ǥ
Section 148(6) of the Act, states that a company shall within thirty days from the date of receipt of a copy of the cost
audit report prepared in pursuance of a direction under sub-section (2) of Section 148 of the Act furnish the Central
ϐ
Ǥ
Section 148(7) of the Act, states that if, after considering the cost audit report referred to under this section and the
information and explanation furnished by the company under sub-section (6) of Section 148 of the Act, the Central
Government is of the opinion that any further information or explanation is necessary, it may call for such further
ϐ
Ǥ
Section 148(8) of the Act, states that if any default is made in complying with the provisions of this section,–
ȋȌ ϐ
in sub-section (1) of section 147;
(b) the cost auditor of the company who is in default shall be punishable in the manner as provided in sub-
ȋʹȌȋͶȌ ͳͶǤ
Maintenance of Records (Rule 5 of the Companies (Cost Records and Audit) Rules, 2014)
(1) Every company under these rules including all units and branches thereof, shall, in respect of each of its
ϐ ͳǡʹͲͳͶǡ CRA-1Ǥ
(2) The cost records referred to in sub-rule (1) shall be maintained on regular basis in such manner as to
facilitate calculation of per unit cost of production or cost of operations, cost of sales and margin for each
ϐ ǦǤ
(3) The cost records shall be maintained in such manner so as to enable the company to exercise, as far as
possible, control over the various operations and costs to achieve optimum economies in utilisation of
resources and these records shall also provide necessary data which is required to be furnished under
Ǥ
The Central Government is empowered to direct, by order, in respect of such class of companies engaged in the
production of such goods or providing such services as prescribed, direct that particulars relating to the utilisation
of material or labour or to other items of cost as prescribed shall also be included in the books of account kept by
Ǥ
COST AUDIT (RULE 6 OF THE COMPANIES (COST RECORDS AND AUDIT) RULES, 2014)
In a case the Central Government is of the opinion, that it is necessary to do so, it may, by order, direct that the audit
of cost records of class of companies, which are covered under sub-section (1) of Section 148 of the Act and which
have a net worth of such amount as prescribed or a turnover of such amount as prescribed, shall be conducted in
340 Lesson 8 • EP-CL
ϐǤ
Every cost auditor appointed as such shall continue in such capacity till the expiry of one hundred and eighty
ϐ ǡϐ
Ǥ
Every cost auditor, who conducts an audit of the cost records of a company, shall submit the cost audit report along
ϐ ǡǡForm CRA-3.
(a) The cost auditor shall forward his duly signed report to the Board of Directors of the company within a period
ͳͺͲ ϐ
ϐ Ǥ
(b) Every company covered under these rules shall, within a period of 30 days from the date of receipt of a copy
of the cost audit report, furnish the Central Government with such report along with full information and
ϐ ǡForm CRA-4 in Extensible Business
ϐȋ
ȌǡʹͲͳͷ ϐȋ
ϐ ȌǡʹͲͳͶǤ
(c) The Companies which have got extension of time of holding Annual General Meeting under section 96 of the
ǡʹͲͳ͵ǡϐForm CRA-4 ϐϐ
ͳ͵ ǡʹͲͳ͵Ǥ
Lesson 8 • Accounts, Audit and Auditors 341
SECRETARIAL AUDIT
Sec Ǥ
Ǥ Ǧ
Ǥ
ȀȀ
ǡ ǡ Ǥǡ
Ǥ
Ǥ
Considering the increasing importance of Corporate Governance, Section 204 of the Companies Act, 2013 mandates
every listed company and such other class of prescribed companies to annex a Secretarial Audit Report, given by a
ǯǤ
Secretarial Audit is an independent, objective assurance intended to add value and improve an organisation’s
Ǥ ǯ ǡ
ǡ ǡ Ǥ
Legal Framework governing Secretarial Audit under the Companies Act, 2013
As per the provision of section 204(1) of the Companies Act, 2013 read with Rule 9 of the Companies (Appointment
ȌǡʹͲͳͶǣ
ͳǤ Ǣ
ʹǤ Ǧ ͷͲ Ǣ
͵Ǥ ʹͷͲ Ǣ
ͶǤ ϐ ͳͲͲ
Ǥ
require to annex with its Board’s Report made in terms of Section 134(3) of the Companies Act, 2013, a Secretarial
Audit Report, given by a Company Secretary in practice, in Form MR- 3.
ϐ ǡǡ ǡ
ϐ Ǥ
Applicability of Secretarial Audit to a Private company which is a subsidiary of a Public company
342 Lesson 8 • EP-CL
According to the provisions of section 2(71) of the Companies Act, 2013 “public company” means a company which
Ǧ Ǥ
ǡϐǡDz ǡ
being a private company, shall be deemed to be public company for the purposes of the Companies Act, 2013 even
dzǤ
ǡ
subsidiary of a public company and which falls u Ǥ
Recent Initiatives
Recently, Reserve Bank of India has come out with a discussion paper on Governance in Commercial Banks in India
in the month of June, 2020 with the proposal to introduce Secretarial Audit in all commercial banks both listed and
Ǥ
The Committee on Corporate Governance, constituted under the Chairmanship of Shri Uday Kotak, in its report
ͲͷǡʹͲͳǡ ϐ
ǣ
a) Secretarial Audit to be made compulsory for all listed entities under the SEBI (Listing Obligations and
Disclosure Requirements) Regulations, 2015 (“LODR Regulations”), in line with the provisions of the
ǡʹͲͳ͵Ǥ
Ȍ Ǥ
Ǥ
The aforesaid recommendations were accepted by SEBI and in order to implement the same, the SEBI (LODR)
ǡʹͲͳͷϐ ͲͻǡʹͲͳͺ ʹͶǤ
Accordingly, as per Regulation 24A of the SEBI(LODR) Regulations, 2015, every listed entity and its material unlisted
subsidiaries incorporated in India shall undertake secretarial audit and shall annex a secretarial audit report given
ǡ ϐǡǤ
ϐǡ ǡ
ϐ Ǥȋ ȋ Ȍ
ȋ ȌǡͶͷǤǤǤͻǤͻǤͶͷȌǤ
ͲͺǡʹͲͳͻϐ
ǡ ϐ
͵ͳǡʹͲͳͻǤ
ǡ ϐǣ
Annual Secretarial Audit Report: The listed entity and its unlisted material subsidiaries shall continue to use the
ǤǦ͵ȋ Ȍ ǡʹͲͳ͵
ʹͶ ȋȌǡʹͲͳͷǤ
Annual Secretarial Compliance Report: While the annual secretarial audit cover a broad check on compliance
with all laws applicable to the entity, listed entities additionally, on an annual basis, require a check by the PCS on
Ȁǡ ǡ
PCS need to submit annual secretarial compliance report to the listed entity in the format prescribed under said
Ǥ
It shall be the duty of the company to give all assistance and facilities to the company secretary in practice, for
Ǥ
ǡǡϐ
Ǥ
Lesson 8 • Accounts, Audit and Auditors 343
The companies which are not covered under section 204 of the Act may obtain Secretarial Audit Report voluntarily
Ǥ
ǧ
• As per the Act, books of account and other books and papers should be available for inspection by any
Ǥ
• Ǯ ǯ ϐǤ
• Ǯ ǯ
ϐ Ȃ
ϐ ǡǡ
Ǥ
• ϐ
Ǥ
capacity of the company in relation to its capital, and enables them to judge about the administration and
Ǥ
• ϐ
Ǥ
348 Lesson 8 • EP-CL
GLOSSARY
Accounts of Companies As per section 2(12) of the Act, “book and paper” and “book or paper” include
books of account, deeds, vouchers, writings, documents, minutes and registers
Ǥ
National Financial Through Section 132 of the Companies Act, 2013, the Central Government has
Reporting Authority introduced a new regulatory authority named as National Authority for Financial
(NFRA) Reporting known as National Financial Reporting Authority (NFRA) with wide
powers to recommend, enforce and monitor the compliance of accounting and
Ǥ
XBRL Format XBRL is a data-rich dialect of XML (Extensible MarkupLanguage), the universally
Ǥ
ϐ
ϐ ǡ ǡǤ
ǡ Ǥ
Ǥ Ǥ
Comptroller and The Comptroller and Auditor General (CAG) of India is an authority, established
Auditor General of ȀǦȀǦȀ
India ͳͶͺǤ Ǧ
exercise such powers in relation to the accounts of the Union and of the States
and of any other authority or body as may be prescribed by or under any law
made by Parliament and, until provision in that behalf is so made
First Auditor ϐ ǡ ǡ
appointed by the Board of Directors within 30 days of the date of registration of
ǡϐ
ϐ
Lesson 8 • Accounts, Audit and Auditors 349
TEST YOURSELF
ȋ ǤȌǤ
ͳǤ ͳʹͺȋͳȌ
ϐ ϐ Ǥ
Ǥ
ʹǤ ǫ
͵Ǥ Ǥ Ƭ Ǥ
appointment?
ͶǤ ǫ
ͷǤ ǫ
Ǥ ǡ Ǧ ǤͳͲ Ǥ
as to whether he can render the following services, keeping in mind, the relevant provisions of the
Companies Act, 2013 ?
ȋȌ ǮǮϐ ǯǯ
ǡ Ǥ
ȋȌ Ǥ Ǥ
(iii) What will be your answer in the above two cases if services are provided to ABC Ltd, a subsidiary
Ǥǫ
Ǥ ǣ ǫ
duty of Board of Directors towards secretarial auditor and audit report ?
ͺǤ ǤǤ
͵ͳ ǡʹͲʹͲǤ ϐ ͵ͳ ǡ
ʹͲʹͲ Ǥͺ Ǥ
ϐ ǡ
Ǥ ǡʹͲͳ͵ǡ
Ǥǫ
Lesson Outline
• Introduction
• Annual Report
• Board’s Report
• Annual Return
• Website Disclosures
• Policies
• LESSON ROUND UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
352 Lesson 9 • EP-CL
INTRODUCTION
Transparency is a pivotal feature in the market based monitoring of companies and is central to shareholders’ ability
ǡ ϐ
the capital markets.
Adequate disclosure also helps improve public understanding of the structure and activities of enterprises, corporate
policies and performance with respect to environmental and ethical standards, and companies’ relationships with
the communities in which they operate. Disclosures are made both through the print media and the electronic
media. Today corporates have to disclose mandatorily under various legislations such as: —
DISCLOSURES BY BOARD
• Disclosures under the Companies Act, 2013 and Rules made thereunder;
• SEBI (LODR) Regulations, 2015 and other regulations applicable for Listed Companies;
• Secretarial Standard on Board’s Report-SS4 (Recommendatory);
• Disclosure under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 and rules made thereunder;
• Disclosures under other applicable Acts.
1. ANNUAL REPORT
The annual report is a comprehensive report provided by most public companies to disclose their corporate
activities over the past year. The report is typically issued to shareholders and other stakeholders who use it to
ϐǯ ϐ Ǥ
As per Regulation 34 of the SEBI (LODR), Regulations, 2015, the listed entity shall submit to the stock exchange and
publish on its website-
(a) A copy of the annual report sent to the shareholders along with the notice of the annual general meeting not
later than the day of commencement of dispatch to its shareholders;
(b) In the event of any changes to the annual report, the revised copy along with the details of and explanation
for the changes shall be sent not later than 48 hours after the annual general meeting.
As per BSE, there are 4722 companies that have their equity listed on BSE, out of which 809 companies are
suspended. As such, there are only 3913 companies, whose equity capital is available for trade.
Sr. no. In the accounts of Disclosures of amounts at the year end and the maximum amount of
loans/ advances/ Investments outstanding during the year.
1 Holding Company • Loans and advances in the nature of loans to subsidiaries by name and
amount.
• Loans and advances in the nature of loans to associates by name and amount.
• ϐȀ
directors are interested by name and amount.
2 Subsidiary Same disclosures as applicable to the parent company in the accounts of subsidiary
company.
3 Holding Company Investments by the loanee in the shares of parent company and subsidiary
company, when the company has made a loan or advance in the nature of loan.
For the purpose of above disclosures directors’ interest shall have the same meaning as given in Section 184 of
Companies Act, 2013.
1. This section shall include discussion on the following matters within the limits set by the listed entity’s
competitive position:
(a) Industry structure and developments.
(b) Opportunities and Threats.
(c) Segment–wise or product-wise performance.
(d) Outlook.
(e) Risks and concerns.
(f) Internal control systems and their adequacy.
ȋȌ ϐ Ǥ
ȋȌ Ȁ ǡ
employed.
(b) attendance of each director at the meeting of the board of directors and the last annual general meeting;
(c) number of other board of directors or committees in which a directors is a member or chairperson,
and with effect from the Annual Report for the year ended 31st March 2019, including separately the
names of the listed entities where the person is a director and the category of directorship;
(d) number of meetings of the board of directors held and dates on which held;
(e) disclosure of relationships between directors inter-se;
(f) number of shares and convertible instruments held by non- executive directors;
(g) web link where details of familiarisation programmes imparted to independent directors is disclosed.
ȋȌ ϐ ͵ͳǡ ʹͲͳͻǡ ȀȀ
ϐ ȋȌ
and sector(s) for it to function effectively and those actually available with the board; and
(j) where the board had not accepted any recommendation of any committee of the board which is
ǡϐ ǡ ǣ
Ȁ
required for the approval of the Board of Directors and shall not apply where prior approval of the
relevant committee is required for undertaking any transaction under these Regulations.
(k) total fees for all services paid by the listed entity and its subsidiaries, on a consolidated basis, to the
ϐȀ
a part.
(l) disclosures in relation to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013:
ȋȌ ϐϐ
ȋȌ ϐ
ȋ Ȍ ϐ
(11) Non-compliance of any requirement of corporate governance report of sub-paras (2) to (10) above, with
reasons thereof shall be disclosed.
(12) The corporate governance report shall also disclose the extent to which the discretionary requirements as
ϐ Ǥ
ȋͳ͵Ȍ ϐ ͳ
27 and clauses (b) to (i) of sub-regulation (2) of regulation 46 shall be made in the section on corporate
governance of the annual report.
Ǥ ϐ
ϐ
conduct of board of directors and senior management.
1. The listed entity shall disclose the following details in its annual report, as long as there are shares in the
demat suspense account or unclaimed suspense account, as applicable :
(a) aggregate number of shareholders and the outstanding shares in the suspense account lying at the
beginning of the year;
(b) number of shareholders who approached listed entity for transfer of shares from suspense account
during the year;
(c) number of shareholders to whom shares were transferred from suspense account during the year;
(d) aggregate number of shareholders and the outstanding shares in the suspense account lying at the end
of the year;
(e) that the voting rights on these shares shall remain frozen till the rightful owner of such shares claims
the shares.
(a) indicating deviations, if any, in the use of proceeds from the objects stated in the offer document or explanatory
statement to the notice for the general meeting, as applicable;
(b) indicating category wise variation (capital expenditure, sales and marketing, working capital etc.) between
projected utilisation of funds made by it in its offer document or explanatory statement to the notice for the
general meeting, as applicable and the actual utilisation of funds.
The statement(s) shall be continued to be given till such time the issue proceeds have been fully utilised or the
purpose for which these proceeds were raised has been achieved and shall be placed before the audit committee
for review and after such review, shall be submitted to the stock exchange(s).
The listed entity shall furnish an explanation for such variation in the directors’ report in the Annual Report.
The listed entity shall prepare an annual statement of funds utilized for purposes other than those stated in the
Ȁ Ȁ ǡ ϐǡ
audit committee till such time the full money raised through the issue has been fully utilized.
Where the listed entity has appointed a monitoring agency to monitor utilisation of proceeds of a public or rights
issue, the listed entity shall submit to the stock exchange(s) any comments or report received from the monitoring
Ǧϐ Ǥ
Where the listed entity has appointed a monitoring agency to monitor the utilisation of proceeds of a public or
rights issue, the monitoring report of such agency shall be placed before the audit committee on an annual basis,
promptly upon its receipt.
Explanation —For the purpose of sub-regulations (6) and (7), “monitoring agency” shall mean the monitoring
ϐ ȋ Ȍ
Regulations, 2018.
ϐ ǡ
entity shall disclose every year, the utilization of such funds during that year in its Annual Report until such funds
are fully utilized.
The listed entity shall send annual report to the holders of securities, not less than twenty-one days before the
annual general meeting.
2. BOARD’S REPORT
The Board’s Report is the most important means of communication by the Board of Directors of a company with its
shareholders. It is a comprehensive document which serves to inform the shareholders about the performance and
various other aspects of the company, its major policies, relevant changes in management, future programmes of
ǡϐ ǡ ǡ Ǥǯ
the shareholders but also the lenders, bankers, government and the public to make an appraisal of the company’s
ϐ Ǥ
͵Ͳ Lesson 9 • EP-CL
The Companies Act, 2013 is based on enhanced disclosures and transparency. The Board’s Report is a document,
preparation of which requires thorough understanding of the subject. The Act requires the Board of Directors to
disclose on various parameters including the risk management, board evaluation, implementation of Corporate
Social Responsibility, a statement of declaration given by independent directors. The Secretarial Audit Report is also
required to be annexed to the Board’s Report.
ϐ
along with its report, known as the “Board’s Report” at every annual general meeting. Apart from giving a complete
review of the performance of the company for the year under report, material changes till the date of the report,
ϐ
impact on the business and indicates the future strategy of the company. The Board’s Report enables shareholders,
lenders, bankers, government, prospective investors, all the stakeholders and the public to make an appraisal of the
ǯ ϐ Ǥ
Practical Issues
The Board’s Report is prepared by Secretarial Department under the supervision and guidance of Company
Ǥ ϐ ǡ
ǡϐ ǡ Ǥ
Getting regular inputs and collecting them in AGM folder is important for ensuring preparation of an exhaustive and
complete Board’s Report without missing any reportable event. Every CS should inculcate the habit and remember
Ȁǯ Ǥ
about to close or soon thereafter, a reminder should also go.
Remuneration received by
MD and WTD from holding or Secretarial Audit Report – Section
subsidiary companies – Section 204(1)
197(14)
In terms of Sub-section (3) of Section 134, the Board’s Report shall include:
ȋȌ ǡif any, where annual return referred to in sub-section (3) of section 92 has been placed;
(b) Number of meetings of the Board: Board’s Report should contain total number of Board Meetings held
during the year;
According to SS-4, the number and dates of meetings of the Board held during the year shall be disclosed in
the Report.
362 Lesson 9 • EP-CL
(c) Directors’ Responsibility Statement: ͳ͵ͶȋͷȌ ϐ ǯ
ϐǣ
(i) in the preparation of the annual accounts, the applicable accounting standards had been followed
along with proper explanation relating to material departures;
(ii) the directors had selected such accounting policies and applied them consistently and made judgments
and estimates that are reasonable and prudent so as to give a true and fair view of the state of affairs of
ϐ ϐ Ǣ
(iv) the directors had prepared the annual accounts on a going concern basis; and
(vi) The directors had devised proper systems to ensure compliance with the provisions of all applicable
laws and that such systems were adequate and operating effectively.
ExplanationǤȂ Dz ϐ dz
ϐ ǡ ǯ
policies, the safeguarding of its assets, the prevention and detection of frauds and errors, the accuracy and
ǡϐ Ǥ
(ca) details in respect of frauds reported by auditors under sub-section (12) of section 143
other than those which are reportable to the Central Government:
• Nature of Fraud with description;
• Approximate Amount involved;
• Parties involved, if remedial action not taken; and
• Remedial action taken.
The auditor shall report the matter related to details of frauds under sub-section (12) of section 143 to the
Central Government involving an amount of Rupees One Crore or above.
(d) a statement on declaration given by independent directors under sub-section (6) of section 149: Every
Independent Director shall give a declaration that he meets the criteria of independence laid down in sub-
ȋȌ ͳͶͻǡ ϐ
ϐ ϐ
any change in the circumstances which may affect his status as an independent director. The Board’s Report
should contain a statement to the effect that the independent directors have given such a declaration.
SS-4 provides that Board’s Report should include a statement to the effect:
(a) that necessary declaration with respect to independence has been received from all the Independent Directors
of the company;
(b) that the Independent Directors have complied with the Code for Independent Directors prescribed in Schedule
IV to the Act.
Lesson 9 • Transparency and Disclosures 363
(e) Company’s policy on directors’ appointment and remuneration including criteria for determining
ϐ ǡǡ Ǧ
section (3) of section 178: The Board’ Report of companies which are required to constitute Nomination
and Remuneration Committee shall include:
Ȉ ϐ ǡ
• positive attributes and independence of a director, and
• recommend to the Board a policy relating to the remuneration of directors, Key Managerial Personnel
and other employees.
Section 178(4) provides that the Nomination and Remuneration Committee shall formulate and recommend
to the Board a policy, relating to the remuneration for the directors, key managerial personnel and other
employees. Such policy shall ensure that –
ȋȌ ϐ ǡ
directors of the quality required to run the company successfully;
(b) relationship of remuneration to performance is clear and meets appropriate performance benchmarks; and
(c) remuneration to directors, key managerial personnel and senior management involves a balance
ϐ ϐ Ǧ
the working of the company and its goals.
Such policy shall be placed on the website of the company, if any, and the salient features of the policy and
changes therein, if any, along with the web address of the policy, if any, shall be disclosed in the Board’s Report.
Exceptions:
;Ǧ ͷͽ; ȋϔ ͻ ǡͶͷͻȌǤ
Ǧ ͷͽ;ȋȌȀȋȌȀȋͺȌ
Ƭϔ Ǥ ͺͼȋȌǡͶͻǦͶͼǦͶͷͻǤ
ϔ Ȃ ͷͽ;ȋϔ ͺ ͶͷͽȌǤ
ȋȌ ϐ ǡ
Ȃ
• Auditor’s report under section 143: Clause (h) of Section 143(3) provides that the auditor’s report
ϐ ǡ
other matters connected therewith.
• Cost Audit Report under section 148: Section 148(5) of the Act and Rule 6 of the Companies (Cost
Records and Audit) Rules, 2014 provides that the rights, duties and obligations applicable to the Auditor
under Chapter X of the Act shall mutatis mutandis apply to a cost auditor appointed under Section 148
of the Act. It also provides that the cost auditor shall submit his report to the Board of Directors of the
Ǥ ǯ ϐ ǡ
relating to the maintenance of cost accounts and other matters connected therewith.
• ʹͲͶȋ͵Ȍǣ Section 204(3) of the Act provides that the
Board of Directors, in their report made in terms of sub-section (3) of section 134, shall explain in full
ϐ
secretarial audit report. Thus, the Board should state detailed explanation in its Board’s Report for
ϐ
including the reasons for such material deviations and reasons that led to such deviations.
364 Lesson 9 • EP-CL
(g) ǡ ͳͺǣ The particulars of loans given,
guarantees provided or investments in securities and acquisition made during the year under section 186 of
the Act should be attached to the Board’s Report.
(h) Particulars of contracts or arrangements with related parties referred to in sub-section (1) of section
188 in the prescribed form; The Report of the Board shall contain the details of contracts or arrangements
entered with Related Parties as referred to in Section 188 (1) in Form AOC-2 pursuant to Rule 8(2) of
Companies (Accounts) Rules, 2014.
(i) The state of the company’s affairs: Information and data which are usually considered pertinent and
necessary for the purpose of a proper appreciation of the state of affairs of a company relating to the period
ϐ Ǥ
which have occurred, as compared to the position as stated in the previous year’s Board’s Report which have
a material bearing on the performance of the company should be indicated in the Board’s Report.
In case no dividend has been recommended by the Board, a statement to that effect shall be made in Board’s
Report as good governance practice.
ȋȌ ǡ ǡ ǡ
manner as prescribed:
Rule 8(3) of the Companies (Accounts) Rules, 2014, prescribes the following details:
A. Conservation of energy
(i) the steps taken or impact on conservation of energy;
Lesson 9 • Transparency and Disclosures 365
(ii) the steps taken by the company for utilising alternate sources of energy;
(iii) the capital investment on energy conservation equipment.
B. Technology absorption
(i) the efforts made towards technology absorption;
(iii) in case of imported technology (imported during the last three years reckoned from the beginning
ϐ Ȍǣ
(d) if not fully absorbed, areas where absorption has not taken place, and the reasons thereof;
and
C. Foreign exchange earnings and Outgo: ϐ
ϐǤ
Exemptions:
;ȋȌȋ Ȍǡ
Ͷͷͺ Ǥ
(n) A statement indicating development and implementation of a risk management policy for the company
ϐ ǡ ǡ
threaten the existence of the company: The company should provide about the overall risk management
framework of the company, whether it has constituted risk management committee, the risk management
policy of the company, the possible risks and steps taken to mitigate those risks in this section.
(o) Details about the policy developed and implemented by the company on Corporate Social Responsibility
initiatives taken during the year: Section 135(4) of the Act provides that the Board of every company having
ǤͷͲͲǤͳǡͲͲͲϐǤͷ
ϐ
report and also place it on the company’s website.
Further, Section 135(2) requires that the composition of the CSR Committee shall be disclosed in the Board’s
Report.
The Board of every company referred to in Section 135 (1) of the Companies Act, 2013, shall ensure that
ǡϐ ǡ Ǥϐ
ϐ
ϐ ǡ ϐ ǡ
pursuance of its Corporate Social Responsibility Policy.
However, if the company fails to spend such amount, the Board shall, in its report made under clause (o) of
sub-section (3) of section 134, specify the reasons for not spending the amount.
366 Lesson 9 • EP-CL
ǡDzͽǦ dzǤ
(p) Board evaluation: Section 134 of the Act read with Rule 8(4) of the Companies (Accounts) Rules, 2014
provides that every listed company and every other public company having a paid up share capital of twenty
ϐ ϐ ǡ
Board of directors, a statement indicating the manner in which formal annual evaluation of the performance
of the Board, its Committees and of individual directors has been made.
Exception:
This clause shall not apply in case of Government company, in which the directors are evaluated by the
Department of the Central Government which is administratively in charge of the company, or, as the case may
ǡ Ǧϔ Ǥ ͺͼȋȌǡͻǦͼǦͶͷͻǤ
(ii) after the end of the year and up to the date of the Report;
ȋȌ Ȁ Ǣ
(c) names of the Directors retiring by rotation at the ensuing annual general meeting and whether or not they
offer themselves for re-appointment.
(iiia) A statement regarding opinion of the Board with regard to integrity, expertise and experience (including the
ϐ ) of the independent directors appointed during the year;
ExplanationǤǦ ǡ Dzϐ dz ϐ
ϐ Ǧ
ϐǦ ȋͳȌ ͳͷͲǤ
(iv) The names of companies which have become or ceased to be its Subsidiaries, joint ventures or associate
companies during the year;
(v) The details relating to deposits, covered under Chapter V of the Act,-
(a) accepted during the year;
(c) whether there has been any default in repayment of deposits or payment of interest thereon during the
year and if so, number of such cases and the total amount involved–
Where disclosures referred to in sub-section (3) of Section 134 of the Companies Act,2013 have been included in
ϐ ǡ ǯǤ
Further, where the policy referred to in clause (e) or clause (o) of sub-section (3) of Section 134 of the Companies
ǡʹͲͳ͵ ǯǡǡϐ
ϐǯ
and the web-address is indicated therein at which the complete policy is available.
ͺȋ ȌǡʹͲͳͶ
Company.
(d) details in respect of frauds reported by auditors under sub-section (12) of section 143 other than those
which are reportable to the Central Government;
ȋȌ ϐ ǡ
disclaimer made by the auditor in his report;
(i) the details of directors who were appointed or have resigned during the year;
Rule 4(4) of the Companies (Share Capital and Debentures) Rules, 2014, provides that the Board of Directors shall,
inter aliaǡ ǯϐ
rights as to dividend, voting or otherwise was completed, the following details, namely:-
(b) details of the differential rights relating to voting rights and dividends;
(c) percentage of shares with differential rights to the total post-issue equity share capital with differential rights
issued at any point of time and percentage of voting rights which the equity share capital with differential
voting rights shall carry to the total voting rights of the aggregate equity share capital;
(e) particulars of promoters, directors or key managerial personnel to whom such shares are issued;
(f) change in control, if any, in the company consequent to the issue of equity shares with differential voting
rights;
(g) diluted Earnings Per Share pursuant to the issue of each class of shares, calculated in accordance with the
applicable accounting standards;
In terms of Rule 8 of Companies (Share Capital and Debentures) Rules, 2014, the Board of Directors shall, inter alia,
disclose in the Directors’ Report for the year in which such shares are issued, the following details of issue of sweat
equity shares namely:-
(a) the class of director or employee to whom sweat equity shares were issued;
(b) the class of shares issued as Sweat Equity Shares;
(c) the number of sweat equity shares issued to the directors, key managerial personnel or other employees
showing separately the number of such shares issued to them , if any, for consideration other than cash and
the individual names of allottees holding one percent or more of the issued share capital;
ȋȌ ϐ Ǣ
(e) the principal terms and conditions for issue of sweat equity shares, including pricing formula;
(f) the total number of shares arising as a result of issue of sweat equity shares;
(g) the percentage of the sweat equity shares of the total post issued and paid up share capital;
ȋȌ ȋ Ȍ ϐ
the issue of sweat equity shares;
(i) the diluted Earnings Per Share (EPS) pursuant to issuance of sweat equity shares.
Proviso to Section 67(3) read with Rule 16(4) of Companies (Share Capital and Debentures) Rules, 2014 provides
that where the voting rights are not exercised directly by the employees in respect of shares to which the scheme
ϐ
employees relates, the Board of Directors shall, inter alia, ǯϐ
year the following details, namely:-
(a) the names of the employees who have not exercised the voting rights directly;
(b) the reasons for not voting directly;
(c) the name of the person who is exercising such voting rights;
(d) the number of shares held by or in favour of, such employees and the percentage of such shares to the total
paid up share capital of the company;
(e) the date of the general meeting in which such voting power was exercised;
(f) the resolutions on which votes have been cast by persons holding such voting power;
(g) the percentage of such voting power to the total voting power on each resolution;
(h) whether the votes were cast in favour of or against the resolution.
ȋȌ ǡ ϐ ǡ
ϐ ǡ ǡǡϐ Ǣ
ȋ Ȍ ϐ Ǣ
(d) the number of permanent employees on the rolls of company;
(e) average percentile increase already made in the salaries of employees other than the managerial
ϐ
ϐ
increase in the managerial remuneration;
ȋȌ ϐ Ǥ
Explanation : the expression “median” means the numerical value separating the higher half of a population
ϐ
from lowest value to highest value and picking the middle one;
If there is an even number of observations, the median shall be the average of the two middle values.
(2) The Board’s Report shall include a statement showing the names of the top ten employees in terms of
remuneration drawn and the name of every employee, who, -
ȋȌ ϐ ǡ ǡ
aggregate, was not less than one crore and two lakh rupees;
ȋȌ ϐ ǡ ǡ
ǡǡϐǢ
ȋȌ ϐ ǡ
which, in the aggregate, or as the case may be, at a rate which, in the aggregate, is in excess of that
drawn by the managing director or whole-time director or manager and holds by himself or along with
his spouse and dependent children, not less than two percent of the equity shares of the company.
(3) The statement referred to in sub-rule (2) shall include the following as under:
(i) designation of the employee;
(ii) remuneration received;
(iii) nature of employment, whether contractual or otherwise;
ȋȌ ϐ Ǣ
(v) date of commencement of employment;
(vi) the age of such employee;
(vii) the last employment held by such employee before joining the company;
(viii) the percentage of equity shares held by the employee in the company within the meaning of clause (iii)
of sub-rule (2) above; and
(ix) whether any such employee is a relative of any director or manager of the company and if so, name of
such director or manager:
Provided that the particulars of employees posted and working in a country outside India, not being directors or
ǡϐ ϐǡ
may be, as may be decided by the Board, shall not be circulated to the members in the Board’s Report, but such
ϐϐϐ ǯǤ
ϐ
ϐ ϐ
to be adopted by shareholders and such particulars shall be made available by the company within three days from
the date of receipt of such request from shareholders:
Provided also that in case of request received even after the date of completion of Annual General Meeting, such
particulars shall be made available to the shareholders within seven days from the date of receipt of such request.
Lesson 9 • Transparency and Disclosures 373
As per Section 197(14) any director who is in receipt of any commission from the company and who is a managing
Ǧ ϐ
from any holding company or subsidiary company of such company subject to its disclosure by the company in the
Board’s Report.
Auditors
Names of the Statutory Auditor, Cost Auditor and Secretarial Auditor and details of any change in such Auditors,
Ȁ ȀȀ
shall be disclosed in the Report.
As per provisions of Section 204(1) of Companies Act, 2013, every listed company or every public company having a
paid- up share capital of 50 crore rupees or more or a turnover of 250 crore rupees or more or every company having
ϐ ͳͲͲ
with its Board’s Report, a Secretarial audit report, given by a company secretary in practice in Form MR-3.
Regulation 24A of the SEBI (LODR) Regulations, 2015 states that every listed entity and its material unlisted
subsidiaries incorporated in India shall undertake secretarial audit and shall annex a secretarial audit report
ǡ ϐǡǤ
Every listed entity shall submit a secretarial compliance report ϐǡ ǡ
ϐ Ǥ
SS-4 provides that, the Board’s Report shall include a statement on compliance of applicable Secretarial Standards
and other Secretarial Standards voluntarily adopted by the company
ǦͶǡ ǯǤ
• The Board of directors in their report shall disclose any material change in the scheme(s) and whether the
ȋȌȀ ȋϔȌǡͶͷͺǢ
Ȉ Ǧ ǡ ȋ
ϔȌǡͶͷͺǤ
Section 21 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
mandates that Internal Committee shall prepare an Annual Report and Section 22 of the said Act provides that the
ϐǡǡ
Report.
374 Lesson 9 • EP-CL
Rule 14 of Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Rules,2013 provides that
the annual report which the Complaints Committee is required to prepare under Section 21 of the Sexual Harassment
of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 shall contain the following details:
• Number of complaints of sexual harassment received in the year;
• Number of complaints disposed off during the year;
• Number of cases pending for more than 90 days;
• Number of workshops or awareness programme against sexual harassment carried out;
• ϐ Ǥ
Further, the Board’s Report should clearly state the amounts, if any, which were to be transferred to the Investor
Education and Protection Fund but have not been so transferred, along with the reasons for such failure.
The Board’s Report and any annexures thereto under section 134(3) shall be signed by the chairperson of the
company if he is authorised by the Board and where he is not so authorised, shall be signed by at least two directors,
one of whom shall be a managing director, or by the director where there is one director.
Where Chairperson is Chairperson of the Company As per SS-4, the annexures to the Board’s Report
authorised by the Board shall be signed in the similar manner as the Board’s
Report, except the Report on CSR activities of the
Where Chairperson is not At least by two directors, one
company, which is required to be signed by the Chief
authorised by the Board of whom shall be Managing
ϐ
Director, or by the director
other Director of the company and by the Chairman
where there is one director
of the CSR Committee of the company.
Situation where the Company is under CIRP and powers of the Board are suspended
As per clause (b) of sub-section (1) of section 17 of Insolvency and Bankruptcy Code (IBC), a company of which
Interim Resolution Professional (IRP) is appointed, the powers of the Board of Directors stands suspended
and shall be exercised by IRP. It may be noted that though the powers of the Board of Directors are suspended,
they are bound to provide all assistance to IRP as only the powers of the Board are suspended and not their
duties.
Further, sub-section (1) of section 19 of IBC provides that the personnel of the Corporate Debtor, its promoters
or any other person associated with the management of the Corporate Debtor shall extend all assistance and
cooperation to the IRP as may be required by him in managing the affairs of the corporate debtor.
An insolvency professional should ensure that the company undergoing insolvency process complies with the
Ǥ Ȁ
with the applicable laws and report periodically to the insolvency professional. The order passed by NCLAT
in the case of ȀǤ strengthens this view by stating that after appointment of
the Resolution Professional (RP) and declaration of moratorium, the Board of Director stands suspended, but
ϐ
Ǥ ǡ Ȁ
are required to function and to assist the Resolution Professional who manages the affairs of the Corporate
Debtor during the period of moratorium.
Exceptions:
In case of section 8 companies, the said documents shall be sent to the members not less than fourteen clear days
before the date of the annual general meeting.
In the case of a listed company, it shall be deemed to be complied with, if the copies of the documents are made
ϐ Ǧ
of the meeting and a statement containing the salient features of such documents in the prescribed form or copies
ǡ ϐǡ
the holders of any debentures issued by the company not less than twenty-one days before the date of the meeting
ϐ Ǥ
In case a company does not hold an annual general meeting in any year, a statement of facts and reasons along with
ϐ ϐǤ
ͳͳȀ ͳͻ ǡ
ǯϐ͵Ͳ
approval by the Board in MGT-14.( ϔ Ͷͻ Ͷͷͻ
ϔȌǤ
Lesson 9 • Transparency and Disclosures 377
ͳ͵ȋͳȌ ϐ
ϐ ǡ
ϐ ǡ ϐ Ǥ
In the case of a subsidiary which has been incorporated outside India (herein referred to as “foreign subsidiary”),
ϐ
ϐ ǡ ͳ͵ȋͳȌ
ǡ ϐ ϐ
ϐ ǡ
ϐ Ǥ
c. Any serious breakdown which has happened and the steps taken to reduce its adverse impact;
378 Lesson 9 • EP-CL
e. Material changes concerning purchase of raw materials and sale of the products etc.
Subject to following the necessary precaution of not to disclose any information which is not in the interest of
the business of the company or which may help the competitors, the Board’s Report shall give details of the
changes, if any, that have occurred during the year under review, in the nature of the business of the company
and in the class of business in which the company has interest and also in the nature of its subsidiary, if any.
8. The company shall disclose composition of the committees of the company viz. Corporate Social Responsibility
Committee, Audit Committee, Nomination and Remuneration Committee and Stakeholders Relationship
Committee in the Board’s Report as per the requirement of Section 135, 177, 178 of the Act, if applicable.
Section 177(8) of the Act, provides that the Board’s Report shall disclose the composition of an Audit
Committee and where the Board had not accepted any recommendation of the Audit Committee, the same
shall be disclosed in such report along with the reasons therefore.
9. The details of Loans, Guarantee and investment shall be mentioned in the Board’s Report as per provisions of
Section 186 of the Act.
10. The company shall disclose in its Board’s Report regarding all the particulars of contracts or arrangements
ͳͺͺȋͳȌ ǦʹǤȏͺȋ Ȍǡ
ʹͲͳͶȐ
11. It is provided that in Board’s Report, a statement must be enclosed which shows the development and
implementation of risk management policy of the company. The suggested items for this statement are as
follows:
a. Introduction
Ǥ ϐ
c. Types of Risks
d. Risk Management
e. Risk Assessment
Ǥ ϐ
g. Risk Handling
h. Monitoring and Reporting
i. Conclusion
12. Section 177(10) of the Act, provides for disclosure of details of establishment of vigil mechanism by the
company on its website, if any, and in the Board’s Report.
13. Section 197(12) read with Rule 5 of the Companies (Appointment and Remuneration of Managerial Personnel)
Rules, 2014 provides for disclosures which are discussed earlier in the chapter.
14. Section 204(1) read with Rule 9 of the Companies (Appointment and Remuneration of Managerial Personnel)
Rules, 2014 requires to annex the Secretarial Audit Report in the Form – MR-3 with the Board’s Report of the
ϐ Ǥ
Such secretarial audit report under section 134, is required to be given by a Company Secretary in practice.
15. Section 134(3)(f) of the Act, provides that the board of directors shall be bound to give full information and
ǯ ϐ ǡ
made by the Auditors in their report on the accounts audited by them and by the company secretary in
practice in his secretarial audit report.
Lesson 9 • Transparency and Disclosures 379
16. Rule 8(3) Companies (Accounts) Rules, 2014 provides that the Board’s Report to include the particulars in
Ȁ Ǥȋǯ
Report is placed at Annexure IV).
3. ANNUAL RETURN
ϐ ǡ
comprehensive information about various aspects of a company. It is perhaps the most important document
ϐ Ǥ ǡ
ϐ Ȁ
Ǥ ϐ ǡ
Ǧϐ
and the people behind management of the company.
ϐ
ϐ
company, promoters, members, meetings, remuneration of directors and key managerial persons etc., to the Registrar
ȀȀǤ
responsibility of the management of the Company. It helps stakeholders to ensure that the company is administered in a
proper way in the interest of its members and creditors.
Applicability
As per section 92 of the Companies Act, 2013, every company is required to prepare the Annual Return in Form No.
MGT-7 excepȋȌǤϐ
ϐ ʹͲʹͲǦʹͲʹͳForm No.MGT-7A containing the particulars as they
ϐ Ǥ
ȋȌ ǡ ϐ
offences and appeals made against such penalty or punishment;
ȋͺȌ ϐ ǡ Ǣ
(9) details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors and
such other matters as may be prescribed.
Additional contents
Secretarial Standard on General Meetings (SS-2) provides that the annual return shall disclose the date of Annual
ȋ Ȍϐ Ǥ
The Annual Return of One Person Company and Small Company shall be signed by the Company Secretary or where
there is no company secretary, by the director of the company. The Act authorises the Central Government to prescribe
abridged form of annual return for “One Person Company, Small Company and such other class or classes of companies
as may be prescribed. Accordingly, Rule 11(1) has prescribed separate Annual Return for these companies.
ϐ
ϐ Ǧ ȋʹȌ ͻʹ ͳͳȋʹȌ
(Management and Administration) Rules, 2014, the Annual Return of a listed company or of a company having a
Ǧ ǤͳͲǤͷͲ ϐ
Secretary in Practice in the Form No. MGT-8.
Practical Scenario
ϐ ȋ Ȍ ǡʹͲͳͻǤ
UDIN generation is mandatory for the following services rendered by a PCS, including:
• ϐ Ǧͺ ͻʹȋʹȌ ǡ ʹͲͳ͵
11(2) of the Companies (Management and Administration) Rules, 2014.
• Issuance of Secretarial Audit Report in terms of Section 204 of the Companies Act, 2013.
• Issuance of Secretarial Audit Report to material unlisted subsidiaries of listed entities (whose equity shares
are listed) in terms of Regulation 24A of SEBI (LODR) Regulations, 2015.
• Issuance of Annual Secretarial Compliance Report to Listed entities (whose equity shares are listed) under
Ǥ Ȁ ȀͳȀʹȀʹͲͳͻͺ ǡʹͲͳͻ
• ϐ
the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations,
2015.
• Signing of Annual Return in Form MGT-7 under Section 92(1) of the Companies Act, 2013 and Rule 11(1) of
the Companies (Management and Administration) Rules, 2014.
Inspection of Annual Return - Section 94 r/w Rule 14 of the Companies (Management &
ȌǡʹͲͳͶ
• Copies of Annual returns prepared pursuant to Section 92, shall be open for inspection during business hours, of
not less than two hours on every working day as the board may decide, by any member, debenture holder, other
ϐ
ϐ ͷͲ Ǥ
• ǡǡ ϐ
ϐ
exceeding 10 rupees for each page. Such copy of return shall be supplied within 7 days of deposit of such fee.
• The Central Government may also, by order, direct an immediate inspection of the document, or direct that
the extract required shall forthwith be allowed to be taken by the person requiring it.
4. WEBSITE DISCLOSURES
Companies Act, 2013 does not mandates companies to have an active website, but SEBI (LODR) Regulations, 2015
requires the listed entity shall maintain a functional website containing the basic information about the listed entity.
As per Regulation 46 of the SEBI (LODR) Regulation,2015, the listed entity shall disseminate the following
information under a separate section on its website :
(a) details of its business;
(b) terms and conditions of appointment of independent directors;
(c) composition of various committees of board of directors;
(d) code of conduct of board of directors and senior management personnel;
ȋȌ Ȁ Ǣ
(f) criteria of making payments to non-executive directors , if the same has not been disclosed in annual report;
(g) policy on dealing with related party transactions;
(h) policy for determining ‘material’ subsidiaries;
(i) details of familiarization programmes imparted to independent directors including the following details:-
(i) number of programmes attended by independent directors (during the year and on a cumulative basis
till date);
(ii) number of hours spent by independent directors in such programmes (during the year and on
cumulative basis till date); and
(t) secretarial compliance report as per sub-regulation (2) of regulation 24A of these regulations;
(u) disclosure of the policy for determination of materiality of events or information required under clause (ii),
sub-regulation (4) of regulation 30 of these regulations;
(v) disclosure of contact details of key managerial personnel who are authorized for the purpose of determining
materiality of an event or information and for the purpose of making disclosures to stock exchange(s) as
required under subregulation (5) of regulation 30 of these regulations;
(w) disclosures under sub-regulation (8) of regulation 30 of these regulations;
ȋȌ ȋȌȋȌ ϐ͵ʹǢ
ȋȌ ϐǦ
(1) of regulation 43A;
(z) annual return as provided under section 92 of the Companies Act, 2013 and the rules made thereunder.
The listed entity shall ensure that the contents of the website are correct and shall update any change in the content
of its website within two working days from the date of such change in content.
Items required to be hosted on website as per Regulation 62 of SEBI (Listing Obligations and Disclosure
ȌǡʹͲͳͷǤ
(a) details of its business;
ȋȌ ϐ ǡϐ
account, directors report etc;
ȋ Ȍ ϐ
handling investor grievances;
(d) email address for grievance redressal and other relevant details;
(e) name of the debenture trustees with full contact details;
(f) the information, report, notices, call letters, circulars, proceedings, etc. concerning non-convertible
redeemable preference shares or non-convertible debt securities;
ȋȌ ϐǢ
(h) information with respect to the following events:
(i) default by issuer to pay interest on or redemption amount;
(ii) failure to create a charge on the assets;
(iii) revision of rating assigned to the non- convertible debt securities:
It is important that the listed entity ensures the contents of the website are correct and updated at any given point
of time.
A company which has raised money by issuing prospectus and has still some unutilized amount of the money so
raised shall not change its objects for which it raised money through the prospectus unless a special resolution
is passed by the company through postal ballot. The details in respect of such a resolution as prescribed shall
ǡǡ ϐ Ǥ
Lesson 9 • Transparency and Disclosures 387
A company after transferring the amount of unpaid dividends to a separate bank account of “Unpaid Dividend
Account” will have to prepare a statement containing the shareholder’s names, their last known addresses,
and the unpaid dividend to be paid to them and place it on the company’s Website, if any.
Capital Reconciliation Audit Report to be submitted to stock exchanges on quarterly basis, in Any Other
Information Section, should contain the amount of Unpaid Dividend transferred to Investor Education and
Protection Fund during the quarter under report.
Provided also that a listed company which has a subsidiary incorporated outside India (herein referred to as
“foreign subsidiary”) –
ȋȌ ϐ
ϐ ǡ
ϐ ϐ
ǡ ϐ
on the website.
Section 177(9) of the Act, pertaining to setting up of vigil mechanism which shall provide for adequate safeguards
against victimization of persons who use such mechanism and make provision for direct access to the chairperson
of the Audit Committee in appropriate or exceptional cases. Provided that the details of establishment of such
mechanism shall be disclosed by the company on its website, if any, and in the Board’s Report.
The Nomination and Remuneration Committee shall formulate the criteria and policy for determining
ϐ ǡ
Provided that such policy shall be placed on the website of the company, if any, and the salient features of the
policy and changes therein, if any, along with the web address of the policy, if any, shall be disclosed in the
ǯǤȏ ͳͺȋͶȌȐ
388 Lesson 9 • EP-CL
A notice of meeting ordered by the Tribunal for the purpose of Compromise and Arrangements must be
served upon the Creditors or class of Creditors, Shareholders or Debenture holders and other members. Such
notice should also be published on the Website of the Company, if any.
The terms and conditions of appointment of independent directors shall also be posted on company’s website
The company shall, at least seven days before the general meeting, inform its members of the candidature of a
ϐ
ϐ ǡǤ
ͳͳǤ ȏ ͳͷ ȋ ϐ
ȌǡʹͲͳͶȐ
The Company shall within thirty days from the date of receipt of notice of resignation from a director, intimate
the Registrar in Form DIR-12 and post the information on its website, if any.
ͳʹǤ ȏ Ͷȋ͵Ȍ ȋ
ȌǡʹͲͳͶȐ
Every company inviting deposits from the public shall upload a copy of the circular on its website, if any.
13. Variation of terms of contracts referred to in the prospectus or objects for which prospectus was
ȏȋ͵Ȍȋ ȌǡʹͲͳͶȐ
The notice shall also be placed on the website of the company, if any.
ͳͶǤ ͺ ȏ ʹʹȋͳȌȋȌ
ȋ ȌǡʹͲͳͶȐ
The Company shall, within a week from the date of submitting the application to the Regional Director,
publish a notice at its own expense, and a copy of the notice in Form No. INC. 19, shall be sent forthwith to the
Regional Director and the said notice shall be published on the website of the company, if any, and as may be
ϐ Ǥ
ͳͷǤ ȏ ͵ʹȋ͵Ȍ
ȋ ȌǡʹͲͳͶȐ
Where there is change of objects for which money is raised through prospectus, a notice shall also be placed
on the website of the company, if any pertaining to the same.
ͳǤ ȏ ͳͲȋͳȌ
ȋȌǡʹͲͳͶȐ
A company closing the register of members or the register of debenture holders or the register of other
ǡ ϐ
Securities and Exchange Board of India, if such company is a listed company or intends to get its securities
listed, by advertisement at least once in a vernacular newspaper in the principal vernacular language of the
ϐ ǡ
and at least once in English language in an English newspaper circulating in that district and having wide
Lesson 9 • Transparency and Disclosures 389
The notice of the general meeting of the company shall be placed on the website of the Company, if any and
ϐ Ǥ
The notice of voting through electronic means shall also be placed on the website of the company, if any and
of the agency forthwith after it is sent to the members
The results declared along with the report of the scrutiniser shall be placed on the website of the company, if
any, and on the website of the agency immediately after the result is declared by the Chairman :
Provided that in case of companies whose equity shares are listed on a recognised stock exchange, the
company shall, simultaneously, forward the results to the concerned stock exchange or exchanges where its
equity shares are listed and such stock exchange or exchanges shall place the results on its or their website.
The notice of the postal ballot shall also be placed on the website of the company forthwith after the notice
is sent to the members and such notice shall remain on such website till the last date for receipt of the postal
ballots from the members.
ʹͳǤ ȏʹʹȋͳ͵ȌȋȌǡʹͲͳͶȐ
The results of the poll shall be declared by placing it, along with the scrutinizer’s report, on the website of the
company.
Where it is not practicable to give the notice in the same manner as the company gives it notice of any general
meetings, the notice shall be published in English language in English newspaper and in vernacular language
ǡ ϐ
Company is situated and such notice shall also be posted on the website, if any, of the Company.
5. POLICIES
Ȁ
Ȁ Ȁ Ȁ Ȁ
Directors and Employees etc. pursuant to the provisions of the Companies Act, 2013 and other corporate laws.
However, companies whose shares are listed on Stock Exchanges in India are additionally required to frame some
Ȁ ǡ ȋȌ Ǥ
The Policies and Codes that are required to be framed by companies, needs also to be disclosed in the Board’s
Report forming part of the Annual Report and uploaded on Company’s website, wherever applicable.
Ȁ ǡ ǡ
requirements etc.
͵ͻͲ Lesson 9 • EP-CL
S. Name of
Applicability Role of: Disclosure
No. Ȁ
Board of Website of
Committee Board’s Report
Directors Company
1. Corporate Every (i) Board shall Board of • Shall disclose The Board of
Social company constitute CSR Directors composition every eligible
Responsibility having net Committee shall: of the CSR company
(CSR) Policy worth of of the Board Committee. referred to in
(i) Approve the
Rs.500 crore which shall sub-section (1)
Policy • Disclose the
or more or formulate & of Section 135
contents
turnover recommend (ii) Ensure shall, disclose
of the CSR
of Rs.1,000 to the Board, that the contents of
Policy as
crore or CSR Policy activities as CSR Policy on
per the
more or a net which shall are included the company’s
particulars
ϐǤͷ indicate the in CSR website, if any.
ϐ
crore or more activities to be Policy are
in the Further, the
during the undertaken by undertaken
Annexure to Board of
immediately the company by the
Companies Directors
preceding in areas or company
(CSR Policy) shall ensure
ϐ subject as per
Rules, 2014. essential
Schedule VII of
disclosure of
the Companies
the following
Act, 2013,
on the website
(ii) Recommend of the Company,
the amount of if any:
expenditure to
• The
be incurred on
composition
the activities to
of the CSR
be undertaken
Committee
by the
company and • CSR Policy
and Projects
(iii) Monitor CSR
approved by
Policy of the
the Board
company from
time to time
2. Whistle Blower Every listed The companies In case of other Details of Details of
Policy – A Vigil company which are companies, establishment establishment
mechanism for and class of required to the Board of of such of such
directors and companies constitute an audit Directors shall mechanism to mechanism to
employees to which: committee- As the nominate a be disclosed be disclosed, if
report genuine Audit Committee director to play any.
(i)accept
concerns or shall review the the role of audit
deposits from
grievances functioning of the committee for
the public;
about Whistle Blower the purpose of
unethical (ii) have mechanism, the vigil mechanism
behavior, borrowed Policy can be to whom other
actual or money routed through the directors and
suspected from banks Audit Committee. employees may
fraud or and public report their
violation of ϐ concerns.
the company’s institutions
code of conduct in excess of
or ethics policy Rs.50 Crores.
Lesson 9 • Transparency and Disclosures 391
Various Policies to be framed as per the SEBI (Listing Obligations and Disclosure Requirements)
ǡʹͲͳͷȌ
As per the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, all listed entities are required
to frame various policies which are detailed below:
(i) Policy for preservation of documents
(ii) Policy for determining material subsidiary
(iii) Policy on materiality of related party transactions
(iv) Policy for determination of materiality
(v) Archival Policy
ȋȌ Ȁ
(vii) Policy on diversity of board of directors
(viii) Dividend Distribution Policy
“Material subsidiary” shall mean a subsidiary, whose income or net worth exceeds 10% of the consolidated income
or net worth respectively, of the listed entity and its subsidiaries in the immediately preceding accounting year.
Explanation.- The listed entity shall formulate a policy for determining ‘material’ subsidiary.
III. Policy on materiality of related party transactions and on dealing with related party
ȏʹ͵Ȑ
Objective: To ensure proper approval of related party transactions.
The listed entity shall formulate a policy on materiality of related party transactions and on dealing with related
party transactions including clear threshold limits duly approved by the board of directors and such policy shall be
reviewed by the board of directors at least once every three years and updated accordingly.
Explanation. – A transaction with a related party shall be considered material if the transaction(s) to be entered into
ϐ ǡ
ϐ Ǥ
With effect from July 01, 2019 a transaction involving payments made to a related party with respect to brand usage
or royalty shall be considered material if the transaction(s) to be entered into individually or taken together with
ϐ ǡ ͷ
ϐ Ǥ
All related party transactions have to be previously approved by the audit committee and require approval of the
shareholders.
Ǥ ȏ͵ͲȋͶȌȋȌȐ
Objective: ϐȀ Ǥ
Every listed entity has to make disclosures of any events or information which, in the opinion of the board of
directors of the listed company, is material.
ͷȋϐȌ
ϐ Ǥ
Lesson 9 • Transparency and Disclosures 393
The vigil mechanism has to provide for adequate safeguards against victimization of director(s) or employee(s)
or any other person who avail the mechanism and also provide for direct access to the chairperson of the audit
committee in appropriate or exceptional cases.
In order to ensure that the Company’s boardroom has appropriate balance of skills, experience and diversity of
perspectives that are imperative for the execution of its business strategy, the Company shall consider a number of
factors, including but not limited to skills, industry experience, background, race and gender
Objective: ϐ
considered while declaring dividend and the circumstances under which the shareholders of the Company may or
may not expect dividend.
(a) the circumstances under which the shareholders of the listed entities may or may not expect dividend;
(c) internal and external factors that shall be considered for declaration of dividend;
(e) parameters that shall be adopted with regard to various classes of shares:
Where in cases the listed entity proposes to declare dividend on the basis of parameters in addition to above
mentioned clauses or proposes to change such additional parameters or the dividend distribution policy contained
in any of the parameters, it shall disclose such changes along with the rationale for the same in its annual report
and on its website.
The listed entities other than top 1000 listed entities based on market capitalization may disclose their dividend
distribution policies on a voluntary basis on their websites and provide a web-link in their annual reports.
394 Lesson 9 • EP-CL
ANNEXURES
Annexure I
SPECIMEN BOARD RESOLUTION FOR PREPARATION OF ANNUAL REPORT IN ABRIDGED FORM FOR
MAILING TO THE MEMBERS
“RESOLVED THAT pursuant to the provisions of Second proviso of sub – section (1) of Section 136 of the Companies
Act, 2013 and Rule 10 of the Companies (Accounts) Rules 2014, the Annual Reports comprising of the Balance
ǡϐ Ǥ ϐ ͵ͳ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǡ
ϐ Ȃ͵ Ǥdz
Annexure II
“RESOLVED THAT the Boards’ Report to be sent to the Shareholders of the company for the year ended 31st
March............... is prepared in accordance with the provisions of Section 134 of the Companies Act, 2013 together
ǡϐ
or adverse remarks, if any, contained in Auditor’s reports, as submitted to the meeting, be and is hereby approved
and the same be signed by Shri.................... Chairman of the company, by Shri.....................Managing Director and
Shri..................... Director for and on behalf of the Board of Directors of the company.”
Annexure III
SPECIMEN RESOLUTION TO BE PASSED BY THE BOARD OF DIRECTORS FOR APPROVAL OF THE BOARD’S
REPORT CONTAINING BOARD’S RESPONSE TO AUDITORS’ COMMENTS AND QUALIFICATIONS
Dz ǡ pursuant to Section 134 of the Companies Act, 2013, the draft of the Board’s Report for the year
͵ͳ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤ ϐ
ǡϐ ǯ
Section 143 (2), and as laid on the table, be and is hereby approved and that the Board’s Report be signed by
the Chairman on behalf of the Board and that the Secretary of the company be directed to issue the same to the
members of the company together with the printed copies of the audited accounts, and the Auditors’ Report.”
Annexure IV
Financial Results:
ǣ Additional depreciation upon revision in useful lives 24,149 18,247 24,149 18,247
of tangible assets
ϐǡ 35,018 27,892 35,018 27,892
follows:
Proposed Final Dividend 2,344 2,344 2,344 2,344
Corporate Dividend Tax on Dividend 477 399 477 399
Transfer to General Reserve 0 1,000 0 1,000
Balance carried to Balance Sheet 32,197 24,149 32,197 24,149
Total 35,018 27,892 35,018 27,892
ȋ ǤͳͲȌȏ 27.88 24.69 27.88 24.69
Ȑ
ʹͲǤǤǤǤǤǤǤǤǦʹͲǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ
Results of operations:
During the year under review, the consolidated gross sales grew by 3.1%. On standalone basis, the Company has
Ǥʹ͵ǡͻͷ Ǥ ʹͳǤͺΨǤͳͳǡ͵͵ʹ ϐ
ʹͲΨǤͳͲǡͺʹ Ǥϐ ǤͳͲǡͺͻͷ ǤͻǡͶͷ
lacs in the previous year and the EPS has increased from Rs.24.69 in the previous year to Rs.27.88. A detailed
analysis of performance for the year has been included in the Management Discussion and Analysis, which forms
part of the Annual Report.
Dividend
ǤȀǦ ȏǤǤ ͲΨȐ ȏ ǤȀǦ
Ȑ͵ǡͻͲǡʹǡͲͺͻǤͳͲȀǦ Ǧϐ ͵ͳ ǡʹͲʹͲǡ
Ǥʹǡͺʹͳ ȏ ǤͶ ȐǤ ǡ
the shareholders at the ensuing Annual General Meeting, will be paid to those shareholders, whose names stand
registered in the Register of Members as on .................... In respect of shares held in dematerialized form, it will be
paid to the members whose names are furnished by the National Securities Depository Limited and the Central
ȏ Ȑǡϐ Ǥ ȋ
ȌʹͷǤͻͲ ϐǤ
During the year, the unclaimed dividend pertaining to the dividend for the year ended 31st March, 2015 was
transferred to Investor Education and Protection Fund.
ϐ
ABC, XYZ is under the majority control of the Company and hence the accounts of ABC, XYZ are consolidated with
ȏȐǦʹͳ
ǡ ǡʹͲͳ͵ȏDz dzȐ
with Schedule III of the Act and Rules made thereunder and the Listing Agreement with the Stock Exchanges. The
audited Consolidated Financial Statements are provided in this Annual Report.
Though Company does not have any subsidiary Company, the Company has formed a policy relating to material
subsidiaries, which is approved by the Board of Directors and can be accessed on the Company’s website at the link:
The Policy on materiality of related party transactions and dealing with related party transactions as approved by
the Board may be accessed on the Company’s website at the link:...................Disclosures on related party transactions
Ǥ͵Ͷϐ Ǥ
Directors
i. Cessation:
Ǥȏ ǦȐǡ Ǥȏ ǦȐǡ
with effect from ...................... and ................... respectively.
The Board places on record its appreciation for contributions and guidance provided by Mr. P and Mr. Q
during their respecti Ȁ Ǥ
Lesson 9 • Transparency and Disclosures 397
Mr. R was appointed as an Additional Director and Whole time Director w.e.f. ........................., subject to the
approval of the Members at the ensuing Annual General Meeting. Mr. R is designated as the Key Managerial
Personnel pursuant to the provisions of section 203 of the Act.
The Independent Directors have submitted their declarations of independence, as required pursuant to the
provisions of section 149(7) of the Act, stating that they meet the criteria of independence as provided in
section 149(6).
v. Chairman:
Pursuant to the provisions of the Companies Act, 2013 and Rules made thereunder and as provided under
Schedule IV of the Act and SEBI (LODR), Regulation, 2015 the Board has carried out the annual performance
evaluation of itself, the Directors individually as well as the evaluation of its committees. The manner in which
the evaluation was carried out is provided in the Corporate Governance Report, which is part of this Annual
Report.
The Board has on the recommendations of Nomination and Remuneration Committee, framed a Policy on
selection and appointment of Directors, Senior Management and their remuneration. The Remuneration
Policy is stated in the Corporate Governance Report, which is part of this Annual Report.
Board Meetings
A calendar of meetings to be held in a year is decided in advance by the Board and circulated to the Directors. During
the year, four Board and four Audit Committee Meetings were convened and held, the details of which are provided
in the Corporate Governance Report, forming part of the Directors’ Report. The gap between two consecutive
meetings was not more than one hundred and twenty days as provided in section 173 of the Act.
Corporate Governance
The Company has complied with the Corporate Governance requirements under the Act and as stipulated in Listing
Regulations. A separate section on detailed report on the Corporate Governance practices followed by the Company
ϐ ȀǤ Ƭ ǡ ǡ
ϐ ǡǤ
ȀǤ ǡ ǡ ȏ ǤǤǤǤǤǤǤǤǤǤǤȐ ϐ
until the conclusion of the ensuing 21st Annual General Meeting and are eligible for reappointment. Pursuant
to provisions of section 139 of the Companies Act, 2013 and the Rules made thereunder, the Board proposes
ȀǤ........... &, Chartered Accountants as Statutory Auditor of the Company from the conclusion
of the ensuing 21st Annual General Meeting till the conclusion of 26th Annual General Meeting. They have
ϐ ϐ ͳͶͳ ǡ ʹͲͳ͵
made thereunder.
ǡ Ȁǡ
Chartered Accountants, as the Statutory Auditor of the Company.
The Board has duly reviewed the Statutory Auditor’s Report on the Accounts. The observations and
comments, appearing in the Auditor’s Report are self-explanatory and do not call for any further explanation
Ȁ ϐ ͳ͵Ͷ Ǥ
ȏȐ
ȏȐ
Chairmanship of Dr. N. Other members of the Committee are Mr. Y and Prof. Z. CSR Committee has recommended to
the Board, a CSR Policy, indicating the activities to be undertaken by the Company, which is approved by the Board.
The CSR Policy is posted on the website of the Company.
Discussion on risks and concerns are covered in the Management Discussion and Analysis Report, which forms part
of this Annual Report.
The Company has established vigil mechanism and framed whistle blower policy for Directors and employees
to report concerns about unethical behavior, actual or suspected fraud or violation of Company’s Code of
Conduct or Ethics Policy. Whistle Blower Policy is disclosed on the website of the Company.
The Company has framed “ABC Business Conduct Policy”. Every employee is required to review and sign the
policy at the time of joining and an undertaking shall be given for adherence to the Policy. The objective of the
Policy is to conduct the business in an honest, transparent and in an ethical manner. The policy provides for
anti- bribery and avoidance of other corruption practices by the employees of the Company.
Particulars of Employees
The information required under section 197 of the Act read with Rule 5(1) of the Companies (Appointment and
Remuneration of Managerial Personnel) Rules, 2014 is attached as Annexure-C.
General Disclosure
Your Directors state that the Company has made disclosures in this report for the items prescribed in section 134(3)
of the Act and Rule 8 of The Companies (Accounts) Rules, 2014 to the extent the transactions took place on those
items during the year.
Disclosure relating to the constitution of Internal Complaints Committee under the Sexual
ȋǡȌ ǡʹͲͳ͵
A statement that the company has complied with provisions relating to the constitution of Internal Complaints
Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
Acknowledgement:
ϐ
employees at all levels through their dedication, hard work and commitment, enabling the Company to achieve
good performance during the year under review.
Your Directors also take this opportunity to place on record the valuable co-operation and support extended by
ǡ ǡ ϐ
Company and look forward to having the same support in all future endeavors.
Ahmedabad Mr. N
Provided further that companies which have been struck off or are under process of striking off or under liquidation
ǡ ǡϐǦ ǣ
Provided also that in case a company does not intimate the said particulars, the Company shall be marked as
“ACTIVE-non-compliant” on or after 16th June, 2019 and shall be liable for action under sub-section (9) of section
12 of the Act:
Provided also that no request for recording the following event based information or changes shall be accepted by
Dz ǦǦ dzǡDzǦ dzϐȂ
(i) SH-07 (Change in Authorized Capital);
(ii) PAS-03 (Change in Paid-up Capital);
(iii) DIR-12 (Changes in Director except in case of :
(a) cessation of any director; or
(b) appointment of directors in such company where the total number of directors are less than the
ȋȌǦ ȋͳȌ ͳͶͻ ϐ
of all or any of the director under section 164;
(c) appointment of any director in such company where DINs of all or any its director(s) have been
deactivated;
(d) appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate
Tribunal under the provisions of the Companies Act, 2013 or under the Insolvency and Bankruptcy
Code, 2016).
ȋȌ Ǧʹʹȋϐ ȌǢ
(v) INC-28(Amalgamation, de-merger).
ϐDzǦ dzǡͳ ǡʹͲͳͻǡ Dz
Compliant”, on payment of fee of ten thousand rupees.
ͶͲʹ Lesson 9 • EP-CL
LESSON ROUND-UP
• The annual report is a comprehensive report provided by most public companies to disclose their
corporate activities over the past year.
• According to Regulation 34 of SEBI (LODR) Regulation, 2015, the listed entity shall submit to the stock
exchange and publish on its website a copy of the annual report sent to the shareholders along with
the notice of the annual general meeting not later than the day of commencement of dispatch to its
shareholders.
• The listed entity shall send annual report to the holders of securities, not less than twenty-one days before
the annual general meeting.
• ǯ ǡ ϐ
section 134 of the Act.
• Section 134 of the Act enjoins upon the Board a responsibility to make out its report to the shareholders
ϐ
meeting
• ͻʹ ǡʹͲͳ͵ǡ ϐ Ǥ Ǧ
ȋȌǤϐ
ϐ ʹͲʹͲǦʹͲʹͳ Ǥ ǦǤ
• ϐͲ
(AGM) is actually held or from the last day on which AGM should have been held.
GLOSSARY
Holding Company “holding company”, in relation to one or more other companies, means a company
of which such companies are subsidiary companies (Sec 2(46) of Companies Act,
2013)
Explanation—For the purposes of this clause, the expression “company” includes
any body corporate.
Subsidiary Company “subsidiary company” or “subsidiary”, in relation to any other company (that is to
say the holding company), means a company in which the holding company–
(i) controls the composition of the Board of Directors; or
(ii) exercises or controls more than one-half of the total voting power either at its
own or together with one or more of its subsidiary companies:
Provided that such class or classes of holding companies as may be prescribed
shall not have layers of subsidiaries beyond such numbers as may be prescribed.
Explanation—For the purposes of this clause,—
(a) a company shall be deemed to be a subsidiary company of the holding
company even if the control referred to in sub-clause (i) or sub-clause (ii) is of
another subsidiary company of the holding company;
(b) the composition of a company’s Board of Directors shall be deemed to be
controlled by another company if that other company by exercise of some
power exercisable by it at its discretion can appoint or remove all or a majority
of the directors;
(c) the expression “company” includes any body corporate;
(d) “layer” in relation to a holding company means its subsidiary or subsidiaries;
ȏ ʹȋͺȌ ǡʹͲͳ͵ȌȐ
Lesson 9 • Transparency and Disclosures ͶͲ͵
TEST YOURSELF
(These are meant for recapitulation only. Answer to these questions are not to be submitted for evaluation).
1. What information is required to be disclosed in Annual Report?
2. Draft a Directors’ Report of your company.
3. What forms the Directors’ Responsibility Statement?
4. What points should be kept in mind while preparing Annual Report?
5. What are the contents of Abridged Board’s Report in case of small company?
6. What are the policies required to be formulated by listed entity under the SEBI (LODR) Regulations, 2015?
Lesson Outline
• Regulatory Framework
• Introduction
Ȉ ϐ
• Loans and Investments by companies
• Investments of Company to be held in its own name
• Registers of Loans Made, Guarantees Given, Securities Provided
& Investments Made
• Related Party Transactions
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
406 Lesson 10 • EP-CL
INTRODUCTION
The power to invest the funds of the company is the prerogative of the Board of Directors. This power is derived by
the Board under Section 179 of the Act. However, the Companies Act, 2013 contains provisions for restrictions on
investments that a company can make and loans it can provide. Moreover, giving corporate guarantee or security
is also as good as giving a loan, because the person to whom guarantee or security is given can decide to enforce
the guarantee or security in certain conditions and in such a situation, the company will have to pay the amount.
Thus, apart from loan and investments, restrictions are also placed on the guarantees which the company can give
or security can provide for a loan.
Provisions in respect of giving of loans, making investments, giving guarantee or providing security or acquiring
ϐ ǡʹͲͳ͵Ǥǡ
overall limit of 60% of paid-up share capital plus free reserves and securities premium account or 100% of free
ǡ ǡϐǤ
The Calcutta High Court in the case of Saradindu Sekhar Banerjee Vs. Lalit Mohan has held that “Every loan is a
debt but every debt is not a loan”.
Let us understand some terminologies used in Section 186 of the Companies Act 2013
(1) Free Reserves
As per section 2(43) of the Companies Act, 2013 (‘the Act’) “free reserves” means such reserves which, as
per the latest audited balance sheet of a company, are available for distribution as dividend:
Provided that –
(i) any amount representing unrealised gains, notional gains or revaluation of assets, whether shown
as a reserve or otherwise, or
(ii) any change in carrying amount of an asset or of a liability recognised in equity, including surplus in
ϐ ǡ
as free reserves.
(2) Paid-up share capital
As per Section 2(64) of the Act, “paid-up share capital” or “share capital paid-up” means such aggregate
amount of money credited as paid-up as is equivalent to the amount received as paid up in respect of
shares issued and also includes any amount credited as paid-up in respect of shares of the company, but
does not include any other amount received in respect of such shares, by whatever name called;
ϐǦ Ǥ equity and
Ǥ
(3) “Body Corporate” or “Corporation
As per Section 2(11) of the Act, “body corporate” or “corporation” includes a company incorporated outside
India, but does not include—
(i) a co-operative society registered under any law relating to co-operative societies; and
ȋȌ ȋ ϐ Ȍǡ
ǡϐ ǡ Ǥ
ǣǦ
• Incorporated under some law - Perpetual succession
• Ability to hold property in its own name
• Legal entity apart from the members
INTRODUCTION
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 407
(5) Industrial, commercial and social development and maintenance, including the following, namely:
(a) real estate development, including an industrial park or special economic zone;
(b) tourism, including hotels, convention centres and entertainment centres;
ȋ Ȍ ǡǡ ǡǡ ǡ
recreation infrastructure, public gardens and parks;
(d) construction of educational institutions and hospitals
(e) other urban development, including solid waste management systems, sanitation and
sewerage systems.
(6) Power, including the following: —
(a) generation of power through thermal, hydro, nuclear, fossil fuel, wind and other renewable
sources;
(b) transmission, distribution or trading of power by laying a network of new transmission or
distribution lines.
(7) Petroleum and natural gas, including the following: —
ȋȌ ploration and production;
(b) import terminals;
ȋ Ȍ Ǧϐ Ǣ
(d) storage terminals;
(e) transmission networks and distribution networks including city gas infrastructure.
(8) Housing, including the following: —
(a) urban and rural housing including public / mass housing, slum rehabilitation, etc;
(b) other allied activities such a s drainage, lighting, laying of roads, sanitation and facilities.
(9) Other miscellaneous facilities/services, including the following: —
(a) mining and related activities;
(b) technology related infrastructure;
(c) manufacturing of components and materials or any other utilities or facilities required by the
infrastructure sector like energy saving devices and metering devices;
(d) environment related infrastructure;
(e) disaster management services;
(f) preservation of monuments and icons;
(g) emerge ȋ ǡ ǡϐ ȌǤ
(10) such other facility service as may be prescribed
Securities
As p ʹȋͺͳȌ ǡʹͲͳ͵Dz dz ϐ ȋȌ
section 2 of the Securities Contracts (Regulation) Act, 1956;
As per Section 2(h) of the Securities Contracts (Regulation) Act, 1956, “Securities” include –
(i) Shares, scrips, stocks, bonds, debentures, debenture stock or other marketable securities of a like nature
in or of any incorporated company or a pooled investment vehicle or other body corporate;
(ia) derivative;
(ib) units or any other instrument issued by any collective investment scheme to the investors in such schemes;
ȋ Ȍ ϐ ȋȌ ʹ
Assets and Enforcement of Security Interest Act, 2002;
(id) units or any other such instrument issued to the investors under any mutual fund scheme;
Explanation.—For the removal of doubts, it is hereby declared that "securities" shall not include any unit
linked insurance policy or scrips or any such instrument or unit, by whatever name called, which provides
ϐ
referred to in clause (9) of section 2 of the Insurance Act, 1938.
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 409
(ida) units or any other instrument issued by any pooled investment vehicle;
ȋȌ ϐ ȋ Ȍǡ
purpose distinct entity which possesses any debt or receivable, including mortgage debt, assigned to
ϐ ǡ
mortgage debt, as the case may be;
(i) Government securities;
(iia) such other instruments as may be declared by the Central Government to be securities; and
(ii) Rights or interest in securities.
‘Layer’ according to explanation (d) of Section 2(87) of the Companies Act, 2013 in relation to a holding Company
means its subsidiary or subsidiaries.
A company shall not make investment through more than 2 layers of investment Companies
A Ltd. (IC)
B Ltd. (IC)
C Ltd. (IC)
Layer 3
(Not Allowed) A ltd. Is an
ultimate Holding
In such case A Ltd. Company of C Ltd.
Is not allowed to
make investment
through C Ltd.
In any other
Company
ȏ ͳͺȋ͵ȌȐ
Though Section 186(2) makes restriction as above, Section 186(3) of the Act read with Rule 13 of the Companies
(Meetings of Board and its Powers) Rules, 2014, empowers the company by stating that where the aggregate of
the loans and investment so far made, the amount for which guarantee or security so far provided to or in all other
bodies corporate along with the investment, loan, guarantee or security proposed to be made or given by the Board,
ϐǦ ȋʹȌ ͳͺ ǤǤͲΨǦ ǡ
reserves and securities premium account or 100% of its free reserves and securities premium account whichever is
more , investment or loan can be made or guarantee can be given or security can be provided only with the previous
authorisation by a special resolution passed in a general meeting. [Section 186(3)]
Where a loan or guarantee is given or where a security has been provided by a company to its wholly owned
subsidiary company or a joint venture company, or acquisition is made by a holding company, by way of subscription,
purchase or otherwise of, the securities of its wholly owned subsidiary company, the requirement of section 186(3)
of the Act shall not apply i.e. prior special resolution is not required.
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 411
A resolution passed at a general meeting in terms of sub-section (3) of section 186 to give any loan or guarantee or
investment or providing any security or the acquisition under sub-section (2) of section 186 shall specify the total
amount up to which the Board of Directors are authorized to give such loan or guarantee, to provide such security
or make such acquisition.
Limit of Approvals:
• No Limit has been provided in the Companies Act, 2013 to grant Loan, provide Guarantee or Security, if
approval of members has been obtained by Special Resolution.
ȋ Ȍ
• Upto 60% of its Paid-Up share capital +Free Reserves +Securities Premium Account or 100% of Free
Reserves +Securities Premium Account, whichever is more
In case of section 8 companies, section 186 (7) of the Act, following proviso shall be applicable:-
Ǧ Ǧ Ǥ
more of the paid-up share capital is held by the Central Government or one or more State Governments or both,
in respect of loans provided by such company for funding Industrial Research and Development projects in
furtherance of its objects as stated in its memorandum of association.” ȋϔ ͷǦͶͼǦͶͷͽȌ
Register of Loans Made, Guarantees Given, Securities Provided and Investments Made
Sub-section (9) of section 186 of the Act, provides that every company giving loan or giving a guarantee or providing
security or making an acquisition under this section shall keep a register which shall contain such particulars and
shall be maintained in manner prescribed under Rule 12 of the Companies (Meetings of Boards and its Powers)
Rules, 2014.
Rule 12 states that every company giving loan or giving guarantee or providing security or making an acquisition of
securities shall, from the date of its incorporation, maintain a register in Form MBP 2 and enter therein separately,
the particulars of loans and guarantees given, securities provided and acquisitions made as aforesaid.
The entries in the register shall be made chronologically in respect of each such transaction within seven days of
making such loan or giving guarantee or providing security or making acquisition.
ϐ
and shall be kept in the custody of the Company Secretary of the company or any other person authorised by
the Board for the purpose. The entries in the register (either manual or electronic) shall be authenticated by the
Company Secretary of the company or by any other person authorised by the Board for the purpose. The register
can be maintained either manually or in electronic mode.
Ǥ
NON APPLICABILITY OF SECTION 186
Ǧ ȋͳͳȌ ͳͺ ǡ ͳͺǡ Ǧ
Section 186, shall apply –
(a) to any loan made, any guarantee given or any security provided or any investment made by a banking
ǡ ǡϐ ǡ
ϐ ǡ
providing infrastructural facilities;
Dzϔ dz ǡǦ
ǡDz
dzǤ
(b) to any investment –
(i) made by an investment company;
(ii) made in shares allotted in pursuance of clause (a) of sub-section (1) of section 62 or in shares allotted
in pursuance of rights issues made by a body corporate;
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 413
Illustration 02:
If A Ltd. makes an investment in B Ltd. and further B Ltd. makes an investment in X, which is a Limited Liability
Partnership. Whereas X, LLP holds shares of Y Ltd. Is there any violation of Section 186 of the Companies Act,
2013 ?
Illustration 03:
P Ltd. wants to make investment in Q Ltd. P Ltd. has the paid-up capital of Rs. 2,00,000 and free reserves of Rs.
ͷͲǡͲͲͲǤ ǫ
Illustration 04:
Section 186 and Sec. 185 dealing with loans and investments by companies speak about loan given to directors
and employees and not about any investment made by one corporate body in another. Referring to the provisions
of the Companies Act, 2013 validate the above statement.
Illustration 05:
Investa India Ltd has Rs. 20,000 crore as paid up share capital with Rs. 2,000 crores as free reserves. It has
Rs. 1,000 crores in its securities premium account. It has made a loan to Investa LLP of Rs. 13,000 crore without
taking any approval. Advise the company whether the approvals are required for giving loans to this LLP? If yes,
ǡʹͲͳ͵Ǥ Ǥ
Government Company?
held that the director was a nominee of the company for that purpose and could only act jointly as he had no rights
of his own. ȏ ȋ ȌǤǡȋͷͿͿͷȌͽ;ȋȌȐǤ
Rule 14 of the Companies (Meetings of Board and its Powers) Rules, 2014
Rule 14 of the Companies (Meetings of Board and its Powers) Rules, 2014 states the following:
(1) Every company shall, from the date of its registration, maintain a register in Form MBP-3 and enter therein,
ǡ ϐ
but which are not held in its own name and the company shall also record the reasons for not holding the
investments in its own name and the relationship or contract under which the investment is held in the name
of any other person.
416 Lesson 10 • EP-CL
(2) The company shall also record whether such investments are held in a third party’s name for the time being
or otherwise.
ȋ͵Ȍ ϐ Ǥ
permanently and shall be kept in the custody of the company secretary of the company or if there is no
ǡ ϐ Ǥ
(4) The entries in the register shall be authenticated by the company secretary of the company or by any other
person authorised by the Board for the purpose.
ǡ Ǧ ϔ
ǦǤ
Punishment
According to section 187(4) of the Act, if a company is in default in complying with the provisions of this section,
ϐϐ
ϐǤ
RELATED PARTY TRANSACTIONS
ǡʹͲͳ͵ǡ
and intricate. Besides strict procedural compliances have been foisted.
According to Section 2(76) of Companies Act 2013, “related party”, with reference to a company, means—
(i) a director or his relative;
(ii) a key managerial personnel or his relative;
ȋȌ ϐǡ ǡǢ
(iv) a private company in which a director or manager or his relative is a member or director;
(v) a public company in which a director or manager is a director and holds along with his relatives, more than
two per cent (2%) of its paid-up share capital;
(vi) any body corporate whose Board of Directors, Managing Director or Manager is accustomed to act in
accordance with the advice, directions or instructions of a director or manager;
(vii) any person on whose advice, directions or instructions a director or manager is accustomed to act:
Provided that nothing in sub-clauses (vi) and (vii) shall apply to the advice, directions or instructions given
in a professional capacity;
(viii) any body corporate which is—
• a holding, subsidiary or an associate company of such company ;
• a subsidiary of a holding company to which it is also a subsidiary; or
• an investing company or the venturer of the company.
Explanation. —For the purpose of this clause, “the investing company or the venturer of a company” means
a body corporate whose investment in the company would result in the company becoming an associate
company of the body corporate
ȋ ϔ Ǥ ͺͼͺȋȌǡͶͻȀͶͼȀͶͷͻ ȋͽͼȌǦ
ͷ;;ǤȌ
ȋȌ Ǥ
Related Party:
͵ȋ ϐ ϐȌǡʹͲͳͶpurposes of sub-
ȋȌ ȋȌ ʹ ǡ
personnel of the holding company or his relative with reference to a company, shall be deemed to be a related party.
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 417
(d) any advance paid or received for the contract or arrangement, if any;
(e) the manner of determining the pricing and other commercial terms, both included as part of contract
and not considered as part of the contract;
(f) whether all factors relevant to the contract have been considered, if not, the details of factors not
considered with the rationale for not considering those factors; and
(g) any other information relevant or important for the Board to take a decision on the proposed
transaction.
(2) Where any director is interested in any contract or arrangement with a related party, such director shall not
be present at the meeting during discussions on the subject matter of the resolution relating to such contract
or arrangement.
lution
First Proviso to the Section 188 (1) of the Act provides that no contract or arrangement, in the case of a company
Ǧ ǡ ǡ ǡ
Ǥ
ͳͷ ȋ Ȍ ǡ ʹͲͳͶ
approval of the company by a resolution, a company shall not enter into a transaction or transactions, where the
transaction or transactions to be entered into,-
(a) as contracts or arrangements with respect to clauses (a) to (e) of sub-section (1) of section 188, with criteria
as mentioned below-
Particular Threshold
Sale, purchase or supply of any goods or materials, directly ηͳͲΨ
or through appointment of agent
Selling or otherwise disposing of, or buying, property of any ηͳͲΨ
kind, directly or through appointment of agent
Leasing of property of any kind ηͳͲΨ
Availing or rendering of any services, directly or through ηͳͲΨ
appointment of agent
ϐ ϐ ǡ Monthly remuneration > Rs. 2.50 lakh
its subsidiary company or associate company
Remuneration for underwriting the subscription of any Transaction value > 1% of net worth
securities or derivatives thereof
ϔ Ǧ ȋȌ ȋȌ
ϔ Ǥ
Ǧ ϔ
ϔ Ǥ
Exceptions: The requirement of passing the resolution shall not be applicable for transactions entered into between
a holding company and its wholly owned subsidiary whose accounts are consolidated with such holding company
and placed before the shareholders at the general meeting for approval.
ǡ ǡϐ
purpose of entering into the transaction between the wholly owned subsidiary and the holding company.
ǣ
pursuant to section 101 shall contain the following particulars, namely:-
(a) name of the related party;
(b) name of the director or key managerial personnel who is related, if any;
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 419
Under the Companies Act, 2013 Under the SEBI (LODR) Regulations, 2015
Issue: Will the requirement of passing a shareholder’s resolution not be applicable for transactions entered
into between a Holding company and its wholly owned subsidiary whose accounts are consolidated with
such holding company and placed for approval before the shareholders at the general meeting of the Holding
company?
View:ǡϐ ͳͺͺȋͳȌ
ϐ ȋͳȌ ͳͺͺ
a holding company and its wholly owned subsidiary whose accounts are consolidated with such holding
company and placed before the shareholders at the general meeting for approval.
ȋʹȌͳͷȋȌ
Rules, 2014 provides that in case of a wholly owned subsidiary, the resolution that is passed by the holding
ϐ
subsidiary and the holding company.
ϐ ͳͺͺȋͳȌ
ǡȋʹȌͳͷ
ϐ Ǥ
420 Lesson 10 • EP-CL
• : In case of private companies second proviso to Section 188(1) of the Act,
shall not apply ȋϔ Ǥ ͺͼͺȋȌͻǦͼǦͶͷͻȌ.
• : In case of Government companies above mentioned Second Proviso
to the section 188 (1) of the Act shall not apply to -
(a) A Government company in respect of contracts or arrangements entered into by it with any other
Government company or with Central Government or any State Government or any combination
thereof;
(b) A Government company other than a listed company, in respect of contracts or arrangements other than
those referred to in clause (a), in case such company obtains approval of the Ministry or Department of
the Central Government which is administratively in charge of the company, or, as the case may be the
State Government before entering into such contract or arrangement.
ȋϔ Ǥ ͺͼȋȌͻǦͼǦͶͷͻȌȋϔ ǣ ǤǤǤͷͻͷȋȌ
02nd March, 2020).
• ϐ ǣSecond proviso to sub section (1) of section 188 shall not
ǡ ϐ Ǥ
ϐ ǡͳ͵ ǡʹͲͳǡ
Section 188 (1) of the Companies Act is available only to those private and Government companies who have not
ϐϐ ͳ͵ ͻʹ ǡ
2013.
In Ǥ Ǥǡ 24 A.D.2d 365 (1996) : 638 N.Y.S 2d 461, the Appellate Division
of the Supreme Court of the State of New York has held the meaning of the phrase, “ in the ordinary course of
business”, as follows:
“Something which is done as a matter of corporate historical practice is, as a matter of law, done “in the ordinary
course of business”.
In the case of ȀǤǤǤȀ Ǥ ǡ it was held that the Memorandum
and Articles of Association is not conclusive for deciding whether an activity is in the ordinary course of business
of the company. Frequency of the activity is sought to be highlighted. It should be a continuous activity carried out
in a normal organised manner.
Issue: ǫ
ǫ
View: The Companies Act, 2013 does not clearly lay down tests for determining whether a transaction is in the
ordinary course of business.
The Memorandum of Association of the company should be referred to for ascertaining whether the activity
is covered in the objects clause therein. This is not a conclusive test but will assist in determining whether a
transaction is in the ordinary course of business or not. The Audit Committee may decide whether a particular
transaction is in the ordinary course of business and such decision will be based on the policy on transactions
with related parties, if any. The company’s policy on transactions with related parties should specify the
parameters to guide the Audit Committee on whether a transaction is in the ordinary course of business or
not. Apart from such a policy, a company may formulate guidelines approved by the Audit Committee and the
Board of Directors on transactions with related parties. In such cases, the company can enter into transactions
based on the approved guidelines and every transaction need not be placed before the Audit Committee for
determining whether the same is in the ordinary course of business or not. In case the company does not have
an Audit Committee, the decision as to whether a transaction is in the ordinary course of business or not will
be taken by the Board.
ǯ
ȋʹȌ ͳͺͺȋͳȌ ǡDzǯ dz
ǡ ϐ Ǥ
The phrase ‘on an arm’s length basis’ is in fact ‘at arm’s length’ or ‘an arm’s length relationship’ which means
avoiding intimacy or close contact. The phrase ‘at arm’s length’ in relation to dealings between two parties is used
to refer to dealings when neither party is controlled by the other.
Arm’s length is the condition or fact that the parties to a transaction are independent and on an equal footing. Arm’s
length transaction is a transaction between unrelated persons or organizations, in which there is no improper
ϐ ǡ ϐ
parties who are not related or not on close terms and who are presumed to have roughly equal bargaining power;
ϐǤDzǯdz
ǯ ϐ Ǥ
An arm’s length transaction is a transaction between companies or people that do not have close contact or any
ϐ ǯ Ǥ
ǯ ϐ
and pertinent material to prove that the terms of the transaction with a related party were purely commercial and
ǦǦ
commercial considerations. The company should create and preserve appropriate and adequate documentation
indicating that the transaction is an arm’s length one, particularly with regard to price and terms of supply (such as
credit, discount, etc). In my opinion, comparable prices of the competitor’s goods are not necessary to be ascertained
but what is necessary is prices charged to other customers (if there is any).
ϐ
between a holding company and its wholly owned subsidiary whose accounts are consolidated with such holding
company and placed before the shareholders at the general meeting for approval.
422 Lesson 10 • EP-CL
Illustration: Suppose company A Ltd. sells a product in the market for Rs. 400 per unit and it also sells the
same to its associate company B Ltd. for Rs. 400 per unit and on the same terms of contract as with other
parties. Here, the price charged from the associate company and others is the same and the transaction
between A Ltd. and B Ltd. is governed by market forces and, therefore, is on arm’s length basis.
Illustrations:
Ȍ Ǥ Ǥǡ ǤǤϐ
ǤǤ Ǥ
ͷͲǤ
lowest quotation for the proposal is Rs 2 crore.
This is a transaction with a related party. This transaction will fall under the proviso to Section 197(4) of
the Act. If the terms and conditions are comparable with those offered by other parties, the transaction
ϐ ϐ ͳͺͺǤȋ Ǥ
ȌǤ ǡ
approval of the Audit Committee will be necessary. Approval of the Nomination & Remuneration
Committee as provided under Section 197of the Act will also be required.
b) Ǥ Ǥ ͳ ʹͲʹͲǤ Ǥ
ǤǤ ʹͲͳͲ
Ltd. for a licence of 5 years of one of the patents for which an amount of Rs 50 lakh is proposed to be paid.
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 423
Although this transaction is with a related party, this transaction will be protected under the proviso to
Section 197(4) of the Act. Section 188(1) of the Act will be attracted if the transaction is not on an arm’s
length basis. This transaction is in the same line of business as that of the company and obtaining a license
of the patent will be in its ordinary course of business. However, approval of the Audit Committee will be
necessary. Approval of the Nomination & Remuneration Committee as provided under Section 197 of the
Act will also be required.
ǯ
Section 188(2) of the Act, provides that every related party contracts or arrangements shall have to be disclosed
ǯ ϐ
transactions in the prescribed form i.e., ǤǦʹ (pursuant to Section 134(3)(h) and Section 188(2)).
Form AOC-2 shall be signed by the persons who have signed the Board’s Report.
• Section 188(3) of the Act, provides that where any contract or arrangement is entered into by a director or
any other employee, without obtaining the consent of the Board or approval by a resolution in the general
Ǧ ȋͳȌ ͳͺͺϐǡ ǡ
the shareholders at a meeting within three months from the date on which such contract or arrangement was
entered into, such contract or arrangement shall be voidable at the option of the Board or, as the case may be,
of the shareholders and if the contract or arrangement is with a related party to any director, or is authorised
by any other director, the directors concerned shall indemnify the company against any loss incurred by it.
• Section 188(4) of the Act, states that it shall be open to the company to proceed against a director or any
other employee who had entered into such contract or arrangement in contravention of the provisions of this
section for recovery of any loss sustained by it as a result of such contract or arrangement.
• A person shall not be entitled to be appointed as a Director by virtue of Section 164(1)(g) of the Companies
Act, 2013 upon such director being convicted of an offence dealing with related party transactions under
ͳͺͺ ϐǤ
Issue: Will a transaction of payment of salary to an employee who is a relative of a Director, (where such payment
is in the ordinary course of business and on arm’s length) require disclosure as a related party transaction in
the Board’s Report?
View: The same need not be disclosed as a related party transaction in Form AOC-2 in the Board’s Report unless
ǯǤ
Issue: Is it required that items falling in the ambit of the fourth proviso to Section 188(1) of the Act i.e.
transactions entered into by the company in its ordinary course of business other than transactions which are
not on an arm’s length basis, be mentioned in Form AOC-2?
View: Form AOC–2 uses the term ‘material’ and therefore if the transactions are material, the same will need
disclosure. A transaction which is in the ordinary course of business and on arm’s length basis but which
is considered to be material will require disclosure in Form AOC–2. It is to be noted that approvals of the
Board and the shareholders are not required if the transaction is in the ordinary course of business and on
arm’s length basis, but disclosure is required from the perspective of transparency.
Public Companies
Public Companies which have, in
Every Listed Public Companies aggregate, outstanding
having Paid up share
having turnover of loans, debentures and
Company capital of Rs.10
Rs.100 Crore or more ǡ
Crore or more
Rs. 50 Crore
In terms of Section 177 of the Act, all companies which are required to constitute an Audit Committee, or which
ǡϐ
Ǥϐ
also require approval of the Audit Committee.
Section 177(4)(iv) of the Companies Act, 2013 provides that the terms of reference of Audit Committee shall include
ϐ Ǣ
Provided that the Audit Committee may make omnibus approval for related party transactions proposed to be
entered into by the company subject to such conditions as may be prescribed;
Thus, it is the responsibility of audit committee to approve the transactions of the company with related parties.
As per Rule 6A of the Companies (Meeting of Board and its Powers) Rules, 2014, the audit committee may make
omnibus approval for all related party transactions proposed to be entered into by the company subject to the
following conditions, namely -
(1) The Audit Committee shall, after obtaining approval of the Board of Directors, specify the criteria for making
the omnibus approval which shall include the following, namely:-
ȋȌ ǡǡ
year;
ȋȌ Ǣ
ȋ Ȍ
approval;
ȋȌ ǡ ϐǡ
by the company pursuant to each of the omnibus approval made;
(e) transactions which cannot be subject to the omnibus approval by the Audit Committee.
(2) The Audit Committee shall consider the following factors while specifying the criteria for making omnibus
approval, namely:-
(a) repetitiveness of the transactions (in past or in future);
ȋȌ ϐ Ǥ
(3) The Audit Committee shall satisfy itself on the need for omnibus approval for transactions of repetitive nature
and that such approval is in the interest of the company.
(4) The omnibus approval shall contain or indicate the following:-
(a) name of the related parties;
(b) nature and duration of the transaction;
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 425
Issue: Where a Board meeting is held prior to the Audit Committee meeting and the Board approves a transaction
with a related party. Can the Audit Committee approval be taken subsequently?
View: Yes. The legal requirement is clear that the transactions referred to in Section 188 require approval of
the Audit Committee. Audit Committee approval after Board’s approval is irregular but not illegal. Further, the
approval of the Audit Committee should be obtained before the transaction.
Issue: Whether approval of the Board will need to be taken by a wholly owned subsidiary which is not required
to constitute an Audit Committee, for entering into transactions with related parties in the ordinary course of
business and on an arm’s length basis?
View: In such case, it is a good practice to place the item pertaining to related party(ies) before the Board. This
is, however, not mandatory.
Issue: Where transactions are between a holding company and its wholly owned subsidiary company, will
Section 177 of the Act be attracted?
View:
the requirement of Audit Committee approval under Section 177 of the Act and as per Regulation 23 of the SEBI
(LODR) Regulations in case of a listed company. However, if the transaction is a related party transaction i.e. of
the nature falling under Section 188(1) of the Act, then approval of the Audit Committee will be required for such
transaction.
In case of a transaction between a holding company and a subsidiary company which is not a wholly owned
subsidiary, Sections177 and 188 of the Act as well as Regulation 23 of the Listing Regulations will apply.
The company is required to check whether it is a transaction in the ordinary course of business and on an arm’s
length basis as per Section 188 of the Act. In case it is a material related party transaction for the purpose of
Regulation 23 of Listing Regulations, then approval of shareholders will also be necessary.
Issue: In case of a public company there are three Directors and all are related to each other and there is an item
of business in which all the three directors are interested. What is the way forward in such a situation?
View: The Board may approve such items only if a dis-interested quorum is present. Otherwise, the matter
would need to be placed for approval at a General Meeting. At a general meeting, if 90% or more of the number
of members are related to the promoters or are related parties, then the related parties can also vote on the
resolution to approve any contract or arrangement.
ǡ ϐ
matter needs to be placed before the shareholders for approval.
426 Lesson 10 • EP-CL
(ii) the indicative base price / current contracted price and the formula for variation in the price if
any; and
ȋȌ ϐǣ
Provided that where the need for related party transaction cannot be foreseen and aforesaid
details are not available, audit committee may grant omnibus approval for such transactions
Ǥ
(d) the audit committee shall review, at least on a quarterly basis, the details of related party transactions
entered into by the listed entity pursuant to each of the omnibus approvals given.
ȋȌ
ǣ
(4) All material related party transactions shall require approval of the shareholders through resolution and “no
related party shall vote to approve” such resolutions whether the entity is a related party to the particular
transaction or not.
ϐʹ͵ȋͶȌ
plan approved under section 31 of the Insolvency Code, subject to the event being disclosed to the recognized
Ǣ
(5) The provisions of sub-regulations (2), (3) and (4) shall not be applicable in the following cases:
(a) transactions entered into between two government companies;
(b) transactions entered into between a holding company and its wholly owned subsidiary whose accounts
are consolidated with such holding company and placed before the shareholders at the general meeting
for approval.
(6) The provisions of regulation 23 of SEBI (LODR) Regulations, 2015 shall be applicable to all prospective
transactions.
ȋȌ ʹ͵ ȋȌǡʹͲͳͷǡϐ
related parties shall not vote to approve the relevant transaction irrespective of whether the entity is a party
to the particular transaction or not.
Disclosure as per the SEBI (LODR) Regulation, 2015
(1) Disclosure in Annual Report- In terms of Schedule V of the Listing Regulations, companies shall make the
required disclosures in their Annual Reports, in compliance with the Accounting Standard on ‘Related Party
ǯǤ Ǥ
ϐ
ϐ Ǥ
Further, disclosures of transactions of the listed entity with any person or entity belonging to the promoter/
promoter group which hold(s) 10% or more shareholding in the listed entity. This disclosure shall be in the
format prescribed in the relevant accounting standards for annual results.
(2) Ǧ Ȃ
(i) In terms of Regulation 27(2) of the Listing Regulations, the listed entity shall submit a quarterly
ϐ
ȋȌʹͳ
(ii) In terms of Regulation 23(9) of the SEBI (LODR) Regulations, 2015, the listed entity shall submit
͵Ͳ ϐ
ǡ ǡ ϐ
its website.
428 Lesson 10 • EP-CL
Reporting Requirements
Authority of reporting
• By Statutory Auditor- Financial Reporting framework requires adequate disclosure of RPTs to enable users
ϐ ϐ Ǥ
• By Secretarial Auditor- The Secretarial Auditor of the Company to provide observations in MR-3 regarding
non- compliances for entering into RPTs.
ϐ Ǥ
such relevant RPTs have been made on arm’s length price.
Case Study
26.09.2019 ITC Ltd. (Appellant) vs. Securities and Exchange Board of India & Securities Appellate
Ors.(Respondents) Tribunal
Ǧ
ȋȌǣ ǡȋϐ Ȍǡ ǤǤ ȋ
ȌǡǤǤǤ ǤȋȌǡϐ Ǥ
of the substantial assets of Hotel Leela ventures Ltd. (Leela) for which the impugned Postal Ballot Notice (PB Notice)
ϐ ǤǤȋ ȌǤ
Fact of the Case
Dzdzϐ ǡ ȋȌ
mechanism. The majority lender institutes agreed for the same. On 20-09-2012 the CDR package of Leela was
Ǥ ǡ ʹͷǦͲͻ ʹͲͳʹ
Bank of India (SBI) and other lenders on the other hand. Under the said Master Restructuring Agreement, Leela was
to comply with certain terms and conditions, which it could not.
ǡʹͷǦͲǦʹͲͳͶǡ
Ǧ ʹͲͳͶǦǤ
receipts. Eventually, the CDR package was declared as failed and on 30-06-2014, majority lenders had assigned
ǤͶͳͷͲǤͳͶ Ǥ Ǥͺͷ Ǥ͵ʹͲͲ
Ǥ ϐ ʹͻȋʹȌʹͷǦͳͲǦʹͲͳǤ ϐ
a corporate insolvency resolution process before the National Company Law Tribunal Mumbai Bench (NCLT), the
proceedings for which are pending.
ǡ ϐ Dz dz
ǯ ϐǤͳͺǦͲ͵ǦʹͲͳͻǡ
the Board of Directors of Leela approved the framework agreement comprising the Asset Sale Transaction and
ǤʹʹǦͲͶǦʹͲͳͻǡ ϐ
oppression and mismanagement, which too is pending before the NCLT. ITC argued that they were not allowed to
obtain a copy of the Framework Agreement but could only take notes.
ITC objected that all the transactions were related party transactions which could not be generally put for the vote
ǡ Ǥ ǡ
Banker Leela was also to gain a remuneration of Rs 70 cores besides its resolution of debt assigned to it by the
Ǥ ǡ ʹΨǡ
2011, it should have been prohibited by SEBI from participating in the voting under the provisions of Regulation 32
of the Takeover Regulations.
SEBI had held that the transactions in question were not related party transactions. They stated that in acquiring
ʹΨ ǡ Ǥ
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 429
Ȁ ǡ ϐ
appeal before SAT.
All the respondents submitted that the appellant was a rival company which was trying to scuttle the transaction
only to compel Leela to undergo the debt resolution under the Insolvency and Bankruptcy Code. The appellant, on
the other hand, submitted that the Directors and the Promoters of Respondent Leela were pushing ahead with their
personal agenda of pocketing an amount of Rs 300 crores through the additional transaction.
ǣ
• Whether the disputed transactions were related party transactions limiting the voting rights of the directors,
ǫ
Ȉ ǫ
Judgment
ϐ
it is in the interest of the investors. In view of objection to the voting rights or limitations on the voting rights of the
Ȁǡ ϐǤ
ϐ Ǥ ǣ
Takeover Regulations:
In view of the Takeover Regulations of 2011 an acquirer acquiring 25% or more shares, voting rights or control in
Ǥ
ʹΨ ͳͲ
Takeover Regulations. SEBI in the impugned order held that the said acquisition was only a technical breach of the
ϐ ͵ʹ
Takeover Regulations.
Corporate debt restructuring scheme was announced by the Reserve Bank of India through various circulars from
ϐ
Ǥ Ǥ ϐ
inter alia regarding interest moratorium, plans of payment, etc. to be worked out in the agreement which would be
approved by the Empowered Group of CDR scheme. In the event of default, the agreement can provide for certain
contingencies. Clause 7.2 of the Master Restructuring Agreement provided for remedy upon default. Therefore, the
covenant regarding conversion right would come into picture only when the CDR scheme fails i.e. default is made
by the borrower in pursuance of the CDR scheme.
LODR Regulations: Related Party Transactions:
the promoters/directors of the in view of the fact that the proposed Asset Sale Transaction of the Company with
ϐ
personally are also agreed. It was submitted that as the nature of the transaction was, the same would be a related
party transaction attracting the provisions of Regulation 23 of the LODR Regulations.
Therefore, the entire transaction was held to be a composite transaction. Further, the additional transaction between
ϐ ǡǡ
23 of the LODR Regulations would not be attracted.
430 Lesson 10 • EP-CL
Illustration 1:
Under the Energy Department, Govt. of Tamil Nadu, three Companies as Government Company were incorporated
as below :
A Ltd. for Generation of Electricity
B Ltd. for Transmission of Electricity
C Ltd. for Distribution of Electricity.
Further, three subsidiaries namely X Ltd., Y Ltd. and Z Ltd. were incorporated as wholly owned subsidiary
companies of C Ltd. C Ltd. purchases the Power (Electricity) from A Ltd. and sale all Power to subsidiary
Companies. Subsidiary Company through B Ltd. distributes the Power in the State.
Apart from that, C Ltd. also purchases cables from manufacturer and sells it to Subsidiary Companies with
margin of 5% on sale price. In the power supply, C Ltd. also charge 0.05 paisa per unit as service charge from
Subsidiary Companies.
During the Audit, Auditors raised the question that there are lot of related party transactions and directors and
members are same in all the Companies. Further, Chairman is also common. Neither the Board nor the Members
ϐ Ǥ
Company Secretary replied that the transactions are pre-approved by Energy Department, Govt. of Tamil Nadu
ϐǤ
In such situation, check the validity of the transactions between related parties?
Illustration 2:
The Board of Directors of Zebra Ltd wants to enter into certain supply and service agreements with some of
their related parties and would like to understand the compliance requirement based on the threshold limits
ϐ Ǥ ǫ
Illustration 3:
Dynamic Ltd. (paid-up share capital Rs. 25 Crore) proposes to enter into a contract with Sunil for the procurement
Ǥͷϐ Ǥȋǯ
wife’s son) of Anil, who is a director of Dynamic Ltd. Discuss the compliance requirements in respect of the
above procurement contract.
Illustration 4:
̵̵
ǡʹͲͳ͵ǡ ̵̵ǣ
ȋȌ ǡ ǤͳͲ ̵Ǧ Ǥ
ȋȌ Ǥ Ǥ
̵ ̵
company.
Illustration 5:
Does the acceptance of deposits by a public limited company from its director attract compliance of any of the
provisions of section 188?
Illustration 6:
Dz ǤdzǤ
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 431
LESSON ROUND-UP
• ‘Investments’ has been used in a limited sense in the lesson to mean the investing of money in shares,
stock, debentures or other securities.
• The power to invest the funds of the company is the prerogative of the Board of Directors. However,
the Board must not misuse its powers. The Companies Act, 2013 contains provisions for restrictions on
investments that a company can make and loans it can provide. Restrictions are also placed on the guarantees
which the company can give or security it can provide for a loan.
• The provisions for restrictions on investments and loans by companies would also apply to Section 8
companies and guarantee companies not having a share capital.
Ȉ ϐ
Ǥϐ Ǥ
• The Companies Act provides for the particulars to be provided in the register of loans made, guarantees
given, securities provided and investments made and the manner in which it is to be kept.
• Provisions have also been given in relation to inspection of such register and penalties imposable in case
of defaults in maintaining the required registers.
• No member of the company shall vote on such resolution, to approve any contract or arrangement which
may be entered into by the company, if such member is a related party. This shall not apply to a company
in which ninety per cent. or more members, in number, are relatives of promoters or are related parties.
• The Audit Committee may make omnibus approval for related party transactions proposed to be entered
into by the company subject to such conditions as may be prescribed.
• As per the Companies Act, 2013 all investments made or held by a company in any property, security
Ǥ ϐ
investments which are made by it on its own behalf and not on behalf of someone else. However, in
ǡ Ǥ
• When any shares or securities in which investments have been made by a company are not held by it in
ϐ
to permissible conditions given in the Act, the company shall forthwith enter in a register maintained by
ǡ ϐ Ǥ
GLOSSARY
Derivatives A derivative is a contract between two parties which derives its value/price from
an underlying asset. The most common types of derivatives are futures, options,
forwards and swaps.
ϐ Ȃ
Institution (i) the Life Insurance Corporation of India, established under section 3 of the
Life Insurance Corporation Act, 1956 (31 of 1956);
(ii) the Infrastructure Development Finance Company Limited;
ȋȌ ϐ ȋ
Undertaking and Repeal) Act, 2002;
ȋȌ ϐ
ȋȌ ϐ
consultation with the Reserve Bank of India:
432 Lesson 10 • EP-CL
ϐȂ
(A) it has been established or constituted by or under any Central or State Act
other than this Act or the previous company law; or
ȋȌ ϐǦ Ǧ
controlled by the Central Government or by any State Government or
Governments or partly by the Central Government and partly by one or
more State Governments;
ϐ [Section 2(72) of Companies Act, 2013]
ϐ
Ǥ ϐ ǡ
receives from the company anything by way of remuneration over and
above the remuneration to which he is entitled as director, by way of salary,
fee, commission, perquisites, any rent-free accommodation, or otherwise;
Ǥ ϐ
ϐǡ ǡǡϐǡ
private company or body corporate holding it receives from the company
anything by way of remuneration, salary, fee, commission, perquisites, any
rent-free accommodation, or otherwise;
ȋ ͳͺͺȋͳȌ ǡʹͲͳ͵Ȍ
TEST YOURSELF
ȋ ǤǤȌ
1. Discuss the law relating to loans and investments by companies.
ʹǤ ǫ
3. What particulars are required to be entered in the Register of Loans and Investments?
4. Your company, is a public limited company which wishes to make investments in the shares of another
Ǥ Ǥ
to be complied with in this regard?
5. What are the ‘related party disclosures’ required to be made by listed entities as per SEBI (LODR)
Regulations ?
6. Whether issue of “shares and debentures” to a related party, covered under the ambit of Section 188 of
the Companies Act, 2013?
7. Will a transaction of payment of salary to an employee who is a relative of a Director, (where such
payment is in the ordinary course of business and on arm’s length) require disclosure as a related party
transaction in the Board’s Report?
ͺǤ ǯǡ
persons who have signed the Board’s Report?
9. Mr. A is a Director of XYZ Ltd. which has entered into a transaction with ABC Pvt. Ltd. on 11.05.2018.
Afterwards Mr. A becomes director in ABC Pvt. Ltd. w.e.f. 15.06.2018. Are related party transaction
provisions applicable to the transaction?
Lesson 10 • An overview of Inter-Corporate Loans, Investments, Guarantees and Security, Related Party Transactions 433
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
434 Lesson 10 • EP-CL
Lesson 11 Registers and Records
Key Concepts One Learning Objectives
Should Know
To understand:
• Statutory
Registers • Importance of Registers and Records
• Records • Registers to be maintained under the Companies Act, 2013
• Foreign Register
• Legal and Secretarial aspect of maintenance, authentication,
• Annual Return
inspection and preservation of statutory registers under the
• Maintenance of Companies Act, 2013
Register
• Preservation of • Role of Company Secretary in maintaining Registers
Register
• Authentication
• Inspection
Lesson Outline
• Introduction
• Importance of Registers and Records
• Register to be maintained under the Companies Act, 2013
• Returns
• Preservations of Records
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
436 Lesson 11 • EP-CL
Register of Sweat Equity Shares [Section 54 r/w Rule 8(14) of the Companies (Share Capital and
Debentures) Rules, 2014]
Register of Employee Stock Options [Section 62(1)(b) r/w Rule 12(10) of the Companies (Share
Capital and Debentures) Rules, 2014]
The Register of Employee Stock Options shall be The company which has issued Employee stock
ϐ options shall maintain a Register of Employee
Ǥ Stock Options in Form No. SH.6 and shall forth
with enter there in the particulars of option
The entries in the register shall be authenticated by the
granted under clause(b) of sub-section (1) of
Company Secretary of the company or by any other
ʹ ǡʹͲͳ͵Ǥ
Ǥ
Register of Securities bought back [Section 68(9) r/w Rule 17(12) of the Companies (Share Capital
and Debentures) Rules, 2014]
ϐ
Section 68, it shall maintain a register of the: The company shall maintain a
register of shares or other
• shares or securities so bought; securities which have been
• the consideration paid for the shares or securities bought back; bought- back in Form No. SH-10.
• the date of cancellation of shares or securities;
• the date of extinguishing and physically destroying the shares or securities and such other particulars as
ͳȋȌǡʹͲͳͶǤ
Ǧ ϐ
shall be kept in the custody of the secretary of the company or any other person authorized by the board in this
Ǥ
The entries in the register shall be authenticated by the secretary of the company or by any other person authorized
Ǥ
Register of Deposits Rule [Section 73 & 76 r/w Rule 14 of the Companies (Acceptance of Deposits)
Rules, 2014]
ϐ
accepted or renewed, in which there shall be entered separately in the case of each depositor the following
particulars, namely:-
• Name, address and PAN of the depositor/s;
• Particulars of guardian, in case of a minor;
• Particulars of the nominee;
• Deposit receipt number;
• Date and amount of each deposit;
• Duration of the deposit and the date on which each deposit is repayable;
• Rate of interest or such deposits to be payable to the depositor;
• Due date(s) for payment of interest;
• Mandate and instructions for payment of interest and for non-deduction of tax at source, if any;
• Date or dates on which payment of interest will be made;
• Particulars of security or charge created for repayment of deposits;
• Ǥ
Entries in the register shall be made within seven days from the date of issuance of the deposit receipt duly
ϐ
Ǥ
Lesson 11 • Registers and Records 439
The register of Deposits shall be preserved in good order for a period of not less than 8 yearsϐ
year in which the latest entry is made in tǤ
Register of Charges [Section 85 r/w Rule 10 of the Companies (Registration of Charges) Rules, 2014]
Section 85(1) read with Rule 10 of Companies (Registration of Charges) Rules, 2014
ϐ The Register of
enter therein particulars of all the charges registered with the Registrar on any of the Charges shall be
property, assets or undertaking of the company and the particulars of any property maintained in Form
ϐ No. CHG-7
Ǥ
• The entries in the register of charges maintained by the company shall be made forthwith after the creation,
ϐ ǡ Ǥ
• Entries in the register shall be authenticated by a director or the secretary of the company or any other
Ǥ
• The register of charges shall be preserved permanently ϐ
thereon shall be preserved for a period of 8 years Ǥ
• ϐ along
Ǥ
• The register of charges and instrument of charges, shall be open for inspection during business hours–
(a) by any member or creditor without any payment of fees; or
(b) by any other person on payment of prescribed fees, subject to such reasonable restrictions as the
ǡ ǡǤ
Register of Members [Section 88(1)(a) r/w Rule 3 of the Companies (Management and
Administration) Rules, 2014]
In the case of a company not having share capital, the register of members shall contain the following
particulars, in respect of each member, namely: -
• Ǣȋϐ
the member is a body corporate); e-mail address; Permanent Every company limited by shares
Ǣ ϐ ǡ shall, from the date of its registration,
Ǣ ǯȀ ǯȀ ǯ Ǣ Ǣ Ǣ maintain a register of its members
Nationality; in case member is a minor, name of the guardian and indicating separately for each class of
the date of birth of the member; name and address of nominee; equity and preference shares held by
each member residing in or outside
• date of becoming member;
India in Form No.MGT-1.
• date of cessation;
• amount of guarantee, if any;
• any other interest, if any; and
• instructions, if any, given by the member with regard to sending of notices, e Ǥ
The register of members a long with the index shall be preserved permanently and shall be kept in the custody of
Ǥ
For details please read the lesson 3, i.e., Members and Shareholders.
Register of Debenture Holders and any other Security Holders [Section 88(1)(b)&(c) r/w Rule
4 of the Companies (Management and Administration) Rules, 2014]
The register should contain information relating to :
• ǡǯȀǯǢ
• address and occupation, if any, of each debenture holder;
440 Lesson 11 • EP-CL
• date of allotment;
Every company which issues or
• date of registration with the Registrar of the Companies;
allots debentures or any other
• the debentures held by each holder distinguishing each security shall maintain a separate
debenture by its number except where such debentures are register of debenture holders or
held with a depository; security holders, as the case may be,
• ϐ Ǣ for each type of debentures or other
securities in Form No.MGT-2Ǥ
• the amount paid or agreed to be considered as paid on those
debentures;
• date of payment;
• date on which the name of each person was entered in the register as a debenture holder;
• date on which any person ceased to be a debenture holder; date of transfer of debentures;
• serial number of instrument of transfer;
• ǯǢ
• ǯǡǡ
numbers;
• date of transfer; and instructions, if any, for payment of interǤ
The register of debenture holders or any other security holders along with the index shall be preserved for a period
of 8 years from the date of redemption of debentures or securities, as the case may be, and shall be kept in the
Ǥ
Maintenance of the Register of Members etc. [Section 88 r/w Rule 5 of the Companies
(Management and Administration) Rules, 2014]
Every company shall maintain the registers of Members, Debenture holders and other Security-holders under
section 88 in the following manner namely:-
(1) The entries in the registers maintained under section 88 shall be made within 7 days after the Board of
Directors or its duly constituted committee approves the allotment or transfer of shares, debentures or any
ǡ Ǥ
ȋʹȌ ϐ
in a general meeting authorising the keeping of the register at any other place within the city, town or village
ϐ Ǧ
Ǥ
(3) Consequent upon any forfeiture, buy-back, reduction, sub-division, consolidation or cancellation of shares,
issue of sweat equity shares, transmission of shares, shares issued under any scheme of arrangements,
mergers, reconstitution or employees stock option scheme or any of such scheme provided under the
ǡʹͲͳ͵ ϐ
ϐ ǡ ǡ
ǡ Ǥ
(4) If any change occurs in the status of a member or debenture holder or any other security holder whether due
to death or insolvency or change of name or due to transfer to Investor Education Protection Fund or due to
ǡ Ǥ
ȋͷȌ ϐ ͺͺ
passed by the competent authority under the Act, the necessary reference of such orders shall be indicated in
Ǥ
(6) If any order is passed by any judicial or revenue authority or by SEBI or Tribunal attaching the shares,
debentures or other securities and giving directions for remittance of dividend or interest, the necessary
reference of such order shall be indicated in the respective reǤ
Lesson 11 • Registers and Records 441
(7) In case of companies whose securities are listed on a stock exchange in or outside India, the particulars of any
pledge, charge, lien or hypothecation created by the promoters in respect of any securities of the company
held by the promoter including the names of pledge/pawnee and any revocation therein shall be entered in
ͳͷ Ǥ
(8) If promoters of any listed company, which has formed a joint venture company with another company have
pledged or hypothecated or created charge or lien in respect of any security of the listed company in
connection with such joint venture company, the particulars of such pledge, hypothecation, charge and lien
ͳͷ Ǥ
If a company does not maintain a register of members or debenture-holders or other security holders or fails to main-
tain them in accordance with the provisions of sub-section (1) or sub-section (2) of Section 88, the company shall be
ϔ
ϔǤ
Foreign Register [Section 88(4) r/w Rule 7 of the Companies (Management and Administration)
Rules, 2014]
In terms of sub-section (4) of Section 88, a company, may, if authorized by its Articles of Association, can also keep
any part of the Register in any other country, outside India, to be called “foreign register”, this Register should
ǡǡ ϐ
Ǥ
Rule 7(2) of the Companies (Management & Administration) Rules, 2014 provides that, the company shall, within
͵Ͳǡϐ ϐ
442 Lesson 11 • EP-CL
in Form No.MGT-3 along with the fee where such register is kept; and in the event of any change in the situation of
ϐ ǡǡ͵Ͳ ǡ
ǡϐ Ǥ Ǧ͵ Ǥ
ǯ
ϐ ǡ Ǥ
ȏȋ͵ȌȋͶȌȐǤ
A foreign register shall be open to inspection and may be closed, and extracts may be taken there from and copies
thereof may be required, in the same manner, mutatis mutandis, as is applicable to the principal register except that
the advertisement before closing the register shall be inserted in at least two newspapers circulating in the place
ȏȋͷȌȐǤ
Entries in the foreign register maintained under sub-section(4) of section 88 shall be made simultaneously after
the Board of Directors or its duly constituted committee approves the allotment or transfer of shases, debentures
ǡ ȏȋȌȐǤ
The company shall –
ȋȌ ϐ ͳͷ
entry is made; and
ȋȌ ϐ ȏȋͺȌȐǤ
ǡ ϐ
Ǥ
Ǥ
If a foreign register is kept by a company in any country outside India, the decision of the appropriate competent
ϐ ȏȋȌȐǤ
The company may discontinue the keeping of any foreign register; and thereupon all entries in that register shall be
ȏȋͳͳȌǤ
Ǥ
The entries in the foreign register shall be authenticated by the Company Secretary of the company or person
Ǥ
The foreign register of members shall be preserved permanently, unless it is discontinued and all the entries are
Ǥ
ͺ Ǥ
Ǥ
ϐ
shall be recorded in a Register of Renewed and Duplicate Register of Renewed and Duplicate Share
ϐ Ǥ ϐ Form No. SH-2
S ϐ indicating against the name(s) of the person(s) to
company or at such other place where the Register of ϐ ǡ
Ǥ preserved ϐ
permanently and shall be kept in the custody of the ϐ ǡ
Company Secretary of the company or any other person changes indicated in the Register of Members by
Ǥ Ǧ Dzdz Ǥ
All entries made in the Register of Renewed and Duplicate
ϐ
ϐ Ǧȋ͵Ȍͷ
ȋȌǡʹͲͳͶǤ
Register of Postal Ballot [Section 110 r/w Rule 22(10) of the Companies (Management and
Administration) Rules, 2014]
The scrutinizer shall maintain a register either manually or electronically to record;
• assent or dissent received from shareholders,
• mentioning the particulars of name, address, folio number or client ID of the shareholder,
• number of shares held by them,
• nominal value of such shares, whether the shares have differential voting rights, if any,
• Ǥ
The postal ballot and all other papers relating to postal ballot including voting by electronic means, shall be under
the safe custody of the scrutinizer till the chairman considers, approves and signs the minutes and there after, the
scrutinizer shall return the ballot papers and other related papers or register to the company who shall preserve
Ǥ
ǡǡ ǯ
in the custody of the Company Secretary or any otǤ
444 Lesson 11 • EP-CL
Record of Private Placement - Section 42 r/w Rule 14 of the Companies (Prospectus and Allotment
of Securities) Rules, 2014
Books containing Minutes of proceedings of General Meeting, meeting of the Board of Directors
and other meeting and resolution passed by postal ballot [Section118 r/w Rule 25 of The
Companies (Management and Administration) Rules, 2014]
Section 118 provides that every company shall prepare, sign and keep minutes of proceedings of every general
meeting,including the meeting called by the requisitionists and all proceedings of meeting of any class of share
holders or creditors or Board of Directors or committee of the Board and also resolution passed by postal ballot
within thirty days of the conclusion of every such meeting concerned.
In case of meeting of Board of Directors or of a committee of Board, the minutes shall contain name of the directors
Ǥ
The Chairman shall exercise his absolute discretion in respect of inclusion or non-inclusion of the matters which is
ǡ ǯǤ
Ǥ
As per section 118(10), every company shall observe Secretarial Standards with respect to General and Board
ϔ
Secretaries Act, 1980 and approved as such by the Central Government. Accordingly, SS-1 & SS-2 needs to be adhered to.
Rule 25 of The Companies (Management and Administration) Rules, 2014 contains provisions with regards to
Ǥ ǣ
(i) General Meetings of the Members;
(ii) Meetings of the Creditors;
(iii) Meetings of the Board; and
ȋȌ Ǥ
It may be noted that resolutions passed by postal ballots shall be recorded in the minute book of general meetings
Ǥ
Ǥ
In case of every resolution passed by postal ballot, a brief report on the postal ballot conducted including the resolu-
ǡ ǯ
minutes book of general meetings along with the date of such entry within thirty days from the date of passing of
Ǥ
Minutes of proceedings of each meeting shall be entered in the books maintained for that purpose along with the
Ǥ
led or signed and the last page of the record of proceedings of each meeting or each report in such shall be dated
and signed by:
• in the case of minutes of proceedings of a meeting of the Board or of a committee thereof, by the chairman of
the said meeting or the Chairman of the next succeeding meeting;
• in the case of minutes of proceedings of a general meeting, by the Chairman of the same meeting within the
aforesaid period of thirty days or in the event of the death or inability of that Chairman within that period, by
a director duly authorized by the Board for the purpose;
Lesson 11 • Registers and Records 445
• in case of every resolution passed by postal ballot, by the Chairman of the Board within the aforesaid period
of thirty days or in the event of there being no chairman of the Board or the death or inability of that chairman
ǡ Ǥ
In ca ϔ Ȁ ϔ Ǧ Ǧ ȋͷȌ ͷͷ;ǡ
following proviso shall be inserted, namely:-
Dz ϔ Ȁ ϔ ǡ
meeting of its Board of Directors or of every committee of the Board, to be prepared and signed in the manner as may
be prescribed under sub section (1) at or before the next Board or committee meeting, as the case may be and kept
ǤdzǤǦϔ Ͷͺ ǡͶͷͽǤ
Ǥ Ǧͳǡ
Ǥ A Member of the company is
not entitled to inspect the
A Director is entitled to inspect the Minutes of a Meeting held before the Minutes of Meetings of the
Ǥ Board.
Meetings held during the period of his Directorship, even after he ceases to be
Ǥ
The Company Secretary in Practice appointed by the company, the Secretarial Auditor, the Statutory Auditor, the
Cost Auditor or the Internal Auditor of the company can inspect the Minutes as he may consider necessary for the
perf Ǥ
Ǥ
ǡ ϐ
the Secretary to facilitate inspection shall take all precautions to ensure that the Minutes Book is not mutilated or
Ǥ
Illustration:
A Board Meeting was held on 1st July 2020 and the next Board Meeting is scheduled to be held on 25th July
2020.
ϔ
ǤǤͻ ǡͶͶǡ Ǥ
books, the same should be placed at the subsequent Board Meeting following the entry of minutes in the minutes
books.
Inspection of Minute-Books of General Meeting [(Section 119 r/w Rule 26 of the Companies
(Management & Administration) Rules, 2014)]
ͳǤ containing the minutes of the proceedings of any general meeting of a company or of are passed
by postal ballot, shall–
ȋȌ ϐ Ǣ
(b) be open, during business hours, to the inspection by any member without charge, subject to such
reasonable restrictions as the company may be its articles or in general meeting, impose, so, however,
Ǥ
ȋ Ȍ Ǥ
ǡ ϐ
Company Secretary to facilitate inspection shall take all precautions to ensure that the Minutes Book
Ǥ
(2) Any member shall be entitled to be furnished, within seven working days after he has made a request in that
behalf to the company, with a copy of any minutes of any general meeting, on payment of such sum as maybe
ϐ ǡ
Ǥ
Provided that a member who has made a request for provision of soft copy in respect of minutes of any
ϐ
ǡ Ǥ
(3) If any inspection of minute books is refused, or if any copy is required under is not furnished within the time
ϐǡ Ǧϐϐ
ϐ ǡ
Ǥ
Lesson 11 • Registers and Records 447
(4) In the case of any such refusal or default, the Tribunal may, direct an immediate inspection of the minute-
books or direct that the copy reqǤ
Requirement of keeping Books of Account [Section128]
ϐϐ
Ǥ ϐ Ǥ
ϐ Ȃ
• ϐ ȋȌȋȌ
ʹȋͳ͵Ȍ ǡʹͲͳ͵ǡ ϐDz dzǤ
• The books of account must show all money received and expended, sales and purchases of goods and the
Ǥ
• Ǥ
• Ǥ
• Dz dzϐ ʹȋͳ͵Ȍincludes records maintained in respect of–
(i) All sums of money received and expended by a company and matters in relation to which the receipts
and expenditure take place;
(ii) All sales and purchases of goods and services by the company;
(iii) The assets and liabilities of the company; and
(iv) The items of cost as may be prescribed under section 148 in the case of a company which belongs to
ϐ Ǥ
All or any of the books of account may be kept at such other place in
The maintenance of books of account
Ǥso decides
and other books and papers in
to keep books and other papers at any other place in India, a notice
electronic mode is permitted and is
to this effect shall be given tot he Registrar in Form AOC-5 giving full
Ǥ
ǯ Ǥ
Manner of Books of Account to be Kept in Electronic Mode [Rule 3 of the Companies (Accounts)
Rules, 2014]
(1) The books of account and other relevant books and papers maintained in electronic modes shall remain
Ǥ
However, for thϐ ͳǡʹͲʹʹǡ
accounting software for maintaining its books of account, shall use only such accounting software which has
a feature of recording audit trail of each and every transaction, creating an edit log of each change made in
books of account along with the date when such changes were made and ensuring that the audit trail cannot
Ǥ
(2) The books of account and other relevant books and papers shall be completely in the format in which they
were originally generate, sent or received, or in a format which shall present accurately the information
generated, sent or received and the information contained in the electronic records shall remain complete
Ǥ
ȋ͵Ȍ ϐ
Ǥ
ȋͶȌ Ǥ
(5) There shall be a proper system for storage, retrieval, display or printout of the electronic records as the Audit
Committee, if any, or the Board may deem appropriate and such records shall not be or rendered unusable,
unless permitted by law:
Provided that the back-up of the books of account and other books and papers of the company in electronic mode,
including at a place outside India, if aǡ Ǥ
448 Lesson 11 • EP-CL
The books of account, together with vouchers relevant to any entry in such books, are required to be
preserved in good order by the company for a period of not less than eight years immediately preceding the
ϐ Ǥ ϐ ǡ
ϐ
Ǥ
The person responsible to take all reasonable steps to secure compliance by the company with the requirement of
Ǥǣȏ ͳʹͺȋȌȐ
(a) Managing Director,
ȋȌ Ǧ ϐ ǡ
ȋ Ȍ ϐ ǡ
(d) Any other person of a company charged by the Board with the duty of complying with provisions of
ͳʹͺǤ
Penalty:
ǡǦ ϐ ǡ ϐ
person of a company charged by the Board with the duty of complying with the provisions of section 128,
ǡ ϐ ϐ
thousand rupees but which may extend to ϐǤ
Register of Directors and Key Managerial Personnel [Section 170(1) r/w Rule17 of the Companies
ȋϐ ȌǡʹͲͳͶȐ
Entries should be made in the register chronologically with a separate folio maintained in respect of each such
Ǥϐ Ǥ
As per Section 171(1) of the Companies Act, 2013, the register kept under sub-section (1) of section 170,–
(a) shall be open for inspection during business hours and the members shall have a right to take therefrom and
copies thereof, on a request by the members, be provided to them free of cost within thirty days; and
(b) shall also be kept open for inspection at every annual general meeting of the company and shall be made
Ǥ
If any inspection by members as provided under Section 171(1)(a) is refused, or if any copy required under that
clause is not sent within thirty days from the date of receipt of such request, the Registrar shall on an application
Ǥ
Exceptions:
In case of Government Company - Section 171 of the Companies Act, 2013 shall not apply to Government
Company in which the entire share capital is held by the Central Government, or by any State Government or
Ǥ
Register of loans, guarantees given and security provided or making acquisition of securities
[Section 186 (9) r/w Rule 12 Companies (Meetings of Boards and its Powers) Rules, 2014)]
ͳǤ e entries in the register shall be made chronologically in
respect of each such transaction within seven days of making Every company giving loan or giving
such loan or giving guarantee or providing security or making guarantee or providing security or
Ǥ making an acquisition of securities
shall, from the date of its incorporation,
ʹǤ ϐ
maintain a register in Form No. MBP-
company and the register shall be preserved permanently
2 and enter therein separately, the
and shall be kept in the custody of the Company Secretary of
the company or any other person authorised by the Board for particulars of loans and guarantees
Ǥ given, saecurities provided and
Ǥ
͵Ǥ ȋ Ȍ
450 Lesson 11 • EP-CL
be authenticated by the Company Secretary of the company or by any other person authorized by the Board
Ǥ
ͶǤ Ǥ
ͷǤ
Ǥ
Register of Investments in Securities not held in Company’s Name [Section 187 and Rule 14 of
Companies (Meetings of Board and its Powers) Rules 2014
1. The particulars to be entered therein, chronologically are:
• the particulars of investments in shares or other securities
ϐ Every company shall, from the
its own name; date of its registration, maintain a
register in Form No. MBP-3
• the reasons for not holding the investments in its own name and
• Ǥ
ʹǤ ǡ ǯ
Ǥ
͵Ǥ ϐ Ǥ
permanently and shall be kept in the custody of the Company Secretary of the company or if there is no
ǡ ϐ Ǥ
ͶǤ
Ǥ
The said register shall be open to inspection by any member or debenture-holder of the company without any
charge during business hours subject to such reasonable restrictions as the company may by its articles or in
Ǥ
Such register or registers are required to be placed before the next meeting of the Board and signed by all the
Ǥ
Every director within thirty days of his appointment or relinquishment is required to disclose his concern or interest
ǡ Ǥ
ϐ
extracts may be taken therefrom, and copies thereof as may be required by any member of the company shall be furnished
ǡ ǡ Ǥ
The register to be kept under Section 189 shall also be produced at the commencement of every annual general
meeting of the company and shall remain open and accessible during the continuance of the meeting to any person
Ǥ
Exceptions:
In case of Section 8 Company-Section 189 shall apply only if the transaction with reference to section 188 on the
Ǥϐ ǣͷth
ǡʹͲͳͷǤ
Annual Return [Section 92 r/w Rule 11 of the Companies (Management and Administration)
Rules, 2014]
As per section 92 of the Act, every company shall prepare an Annual Return containing the required particulars as
they stood on the close of the ϐ ǡ
ǡ Ǥ
Company, small company and private company (if such private company is a start-up), the annual return shall be
ǡ ǡ Ǥ
Provided further that the Central Government has been empowered to prescribe abridged form of annual return for
Dzdzǡ Ǥ
The annual return, filed by a listed company or, by a ϔ
company having paid-up capital of ten crore rupees or in Form No.MGT-7 except One Person Company
more or turnover of fifty crore rupees or more, shall be (OPC) and Small Company.
certified by a Company Secretary in practice and the
certificate shall be in Form No. MGT. 8, stating that the One Person Company and Small Company shall
annual return discloses the facts correctly and adequately ϔϔ ͶͶǦ
and that the company has complied with all the provisions 2021 onwards in Form No.MGT-7A.
ǡʹͲͳ͵Ǥ
452 Lesson 11 • EP-CL
Copies of all annual returns prepare ͻʹ ϐ
ϐǤ
Provisions under the SEBI (Listing Obligation and Disclosure Requirements) Regulations, 2015
In case of listed entities the SEBI (LODR) Regulations, 2015 requires certain policies to be adopted by the compa-
nies for the purpose of preserving documents
A. Policy for preservation of documents
Regulation 9 of the SEBI (Listing Obligation and Disclosure Requirements) Regulations, 2015 provides following for
the preservation of documents:
The listed entity shall have a policy for preservation of documents, approved by its board of directors, classifying
them in at least two categories as follows
(a) documents whose preservation shall be permanent in nature;
(b) documents with preservation period of not less than eight years after completion of the relevant transactions:
4. Section 68(9) r/w Register of Shares or other Securities bought back SH-10
Rule17(12) of the
Companies (Share Entries shall be made regarding shares or securities so bought, the
Capital and consideration paid for the shares or securities bought back, the
Debentures) Rules, date of cancellation of shares or securities, the date of extinguishing
2014 and physically destroying the shares or securities and such other
Ǥ
The entries in the register shall be authenticated by the secretary
of the company or by any other person authorized by the Board for
Ǥ
5. Section 73 and 76 r/w Register of Deposits -
Rule 14 of the
Companies Entries in the register shall be made within 7 days from the date of
(Acceptance of issuance of the deposit receipt duly authenticated by director,
Deposit) Rules, 2014 ϐ
Ǥ
ϐͳͶ
ȋ ȌǡʹͲͳͶǤ
6. Section 85 r/w Rule 10 Register of Charges CHG-7
of the Company
(Registration of Entries shall be made regarding particulars of all the charges
Charges) Rules, 2014 registered with the Registrar on any of the property, assets or
undertaking of the company and the particulars of any property
acquired subject to a charge as well as particulars of any
ϐ Ǥ
The entries in the register of charges maintained by the
ǡϐ
ǡ Ǥ
Entries in the register shall be authenticated by a director or the
secretary of the company or any other person authorised by the
Ǥ
8. Section 88 r/w Rule 4, Register of debenture holder and other security holders MGT-2
5, 6, 8 & 15(2) of the
Every company which issues or allots debentures or any other
Companies (Man-
security shall maintain a separate register of debenture holders or
agement and Admin-
security holders, as the case maybe, for each type of debentures or
istration) Rules, 2014
Ǥ
Authenticated by the Company Secretary of the company or by any
other person authorised by the Board for the purpose, and the date
Ǥ
9. Section 88 r/w Foreign Register of Members/debenture holders/other security MGT-1/
Rule 7, 8 & 15 of Ȁϐ MGT-2
the Companies
A company which has share capital or which has issued debentures
(Management and
or any other security may, if so authorised by its articles, keep in
Administration) Rules,
any country outside India, a part of the register of members or as
2014
the case may be, of debenture holders or of any other security
ϐ ǡ Ǥ
ǯ
register of members or of debenture holders or of any other
ϐ ǡ Ǥ
The entries in the register shall be authenticated by the Company
Secretary of the Company or person authorized by the Board
Ǥ
13. Section 170(1) Register of Directors & Key Managerial Personnel and their -
r/w Rule 17 of share holding.
the Companies
ϐͳȋ
(Appointment &
Ƭϐ ȌǡʹͲͳͶ
ϐ
Directors) Rules, 2014
Lesson 11 • Registers and Records 455
17. Section 189(1) r/w Register of Contracts or arrangements with related party and MBP-4
Rule 16 of the with Bodies corporate etc. in which directors are interested
Companies (Meeting of Every company shall keep one or more registers giving separately
Board and its Powers) the particulars of all contracts or arrangements to which section
Rules, 2014 184(2) or section 188 applies, in such manner and containing such
particulars as may be prescribed and after entering the particulars,
such register or registers shall be placed before the next meeting of
Ǥ
The entries in the register shall be made at once, whenever there is
a cause to make entry, in chronological order and shall be
authenticated by the Company Secretary of the company or by any
Ǥ
456 Lesson 11 • EP-CL
LESSON ROUND-UP
• The Companies Act, 2013 lays down that every company incorporated under this Act must maintain and
ϐ ǡ ǡ Ǥ
ǡϐ ǡǡǡ Ǥ
ϐ ϐǤǤ
• ϐ ǡ inter alia, the
following statutory books and registers:
» Ǥȏ ͺȀͳȋͳʹȌȋ
ȌǡʹͲͳͶȐǤ
» Ǥȏ ͵ƬȀͳͶȋ Ȍǡ
ʹͲͳͶȐǤ
» Ǥȏ ͺͷͳͲǡʹͲͳͶȐ
» Register of members [Section 88 (1) and Rule 3(1) of the Companies (Management and Administration)
ǡʹͲͳͶȐǤ
» Register of debenture holders [Section 88 (1) and Rule 4 of the Companies (Management and
ȌǡʹͲͳͶȐǤ
» “Foreign register”containing the names and particulars of the members, debenture holders, other
ϐ ȏ ͺͺȋͶȌȐǤ
» ϐ ȏ Ͷȋ͵ȌȀ
ȋȌǡʹͲͳͶȐǤ
» Register of sweat equity shares [Section 54 r/w Rule 8(14) of the Companies (Share Capital and
ȌǡʹͲͳͶȐǤ
» ϐ ϐ ȏ ͻͲ Ȁ ͷ ȋϐ
ϐ ȌǡʹͲͳͺȐǤ
» Register of Postal Ballot [Section 110 r/w Rule 22 of the Companies (Management and
ȌǡʹͲͳͶȐǤ
» Books containing minutes of general meeting and of Board and of committees of Directors [Section
ͳͳͺȀʹͷȋȌǡʹͲͳͶȐǤ
» Ǥȏ ͳʹͺȐǤ
» Ȁȏ ͳͲȋͳȌȐǤ
» Register of loans, guarantees given and security provided or making acquisition of securities
ȏ ͳͺȋͻȌȀȋͳʹȋȌʹͲͳͶȐǤ
» ǯ ȏ ͳͺ Ȁ ͳͶ
ȋȌǡʹͲͳͶȐǤ
» Ȁϐ Ǥȏ ͳͺͻȋͷȌȀ
Rule16 of the Companies (MeȌǡʹͲͳͶȐǤ
GLOSSARY
TEST YOURSELF
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation).
Lesson Outline
• Provisions of Companies Act, 2013 • Power of Central Government to
• Power to Compromise or make provide for amalgamation of
arrangements with members or companies
creditors • Oppression & Mismanagement
• Merger and amalgamation of • Winding up
certain companies • Registered Valuer
• Merger and amalgamation of a • LESSON ROUND UP
company with a foreign company
• GLOSSARY
• Power to acquire shares of
• TEST YOURSELF
shareholders dissenting from
scheme or contract approved by • LIST OF FURTHER READINGS
majority • OTHER REFERENCES
• Purchase of minority shareholding
460 Lesson 12 • EP-CL
Stamp duty is levied on the instrument evidencing a transfer inter-vivos, i.e., a conveyance. As per Section 2(10) of
the Indian Stamp Act, 1899, “Conveyance” includes a conveyance on sale and every instrument by which property
whether movable or immovable, is transferred inter vivos ϐ
Schedule I.
As per Section 2(14) of the Indian Stamp Act, 1899, “Instrument” includes every document by which any right or
liability is, or purports to be, created, transferred, limited, extended, extinguished or record.
The term Section 3(18) of the General Clauses Act, 1897, “Document” shall include any matter written, expressed
ǡϐǡwhich
is intended to be used, or which may be used, for the purpose or recording that matter.
ϐȋȌ ǦǤ ǡ
ambiguity and confusion in this regard, with time, certain States has amended their Stamp Act and included Order
of Court approving scheme of arrangement within the meaning of ‘conveyance’. Maharashtra, Gujarat, Karnataka,
ǡǡ ϐ
amalgamation order of a High Court as “Conveyance”.
In Re. Sahayanidhi (Virudhunagar) Ltd. vs. AR.S Subramanya Nadar, (1950) 20 Com Cases 214 (Mad) Hon’ble
Madras High Court held that, “the documents (scheme of amalgamation or reconstruction) purport to transfer
movable property in the shape of book debts and promissory notes and the consideration for such transfer is
partly in the shape of a cash payment and partly in the shape of covenants entered into by the transferee. We are
therefore of the opinion that these two documents fall within Article 23 of Schedule I and are to be stamped as
such.”
In Re. Hindustan Lever vs. State of Maharashtra (2004) 9 SCC 438 ǡ Dz ϐ
ͳͳͻͻ͵ǤDz dzϐǡ
every document by which any right or liability is, or purports to be created, transferred, limited, extended,
extinguished or recorded, but does not include bill of exchange, cheque, promissory note, bill of lading, letter of
credit, policy of insurance, transfer of shares, debenture proxy and receipt. The recital in the scheme of
amalgamation as well as the order of the High Court under Section 394 of the Companies Act, 1956, declares,
that, upon such order of High Court the undertaking of the transferor company shall stand transferred to the
transferee company with all its movable, immovable and tangible assets to the transferee company without any
further act or deed. Thus, the amalgamation scheme sanctioned by the Court would be an “instrument” within
the meaning of Section 2(i). By the said “instrument” the properties are transferred from the transferor company
to the transferee company, the basis of which is the compromise or arrangement arrived at between the two
companies.
In Re. Gemini Silk Ltd. vs. Gemini Overseas Ltd. [2003] 114 Comp. Cas. 92 (cal.) Hon’ble Calcutta High Court held
that, “An order sanctioning a scheme of reconstruction has its genesis in an agreement between the shareholders
of the transferor and the transferee-company. The intended transfer is a voluntary act of contracting parties. The
transfer has all the trappings of a sale. The transfer is effected by an order of court and the order of court is an
instrument by which the transfer is effected. Once the order is held to be an instrument, the irresistible conclusion
is that it is a conveyance. Thus, an order sanctioning a scheme of reconstruction or amalgamation under section
͵ͻͶ ϐ Ǯ ǯ Ǯǯ ǡ ͳͺͻͻ ǡ
therefore, liable to stamp duty.”
In the case of Madhu Intra Ltd vs. Registrar of Companies 2006 130 Comp Cas 510 Cal the Division Bench of
Hon’ble High Court of Calcutta made the following observations, even if the order under Section 394 is to be
taken to be a ‘conveyance’ or an ‘instrument’ the transfer of assets and liabilities effected thereby is purely by
operation of law which on account of Section 2(d) of the Transfer of Property Act also excludes the operation of
ȋȌǤϐǮǯ ʹȋͳͶȌ
ǡǦ ϐϐ
of ‘conveyance’ and/ or ‘instrument’ does not apply to an order under Section 394 of the Companies Act for the
purpose of stamp-duty.
462 Lesson 12 • EP-CL
In our view, the transfer of assets and liabilities of the transferor company to the transferee company takes place
on an order being made under Sub-section (1) of Section 394 by operation of Sub-section (2) thereof.
In February 2012 the Hon’ble High Court of Calcutta made the following observations in the case of Emami
Biotech Limited and Others.....
By sanctioning of amalgamation scheme, the property including the liabilities are transferred as provided in
Section 394 of the Companies Act and on that transfer instrument, stamp duty is levied. It, therefore, cannot be
said that the State Legislature has no jurisdiction to levy such duty.
It must be respectfully observed in the context that in the light of the judgment in Hindustan Lever, the view
expressed in Madhu Intra does not hold good. The judgement in Madhu Intra did not notice the Supreme Court
pronouncement in Hindustan Lever. If the Division Bench of this court had noticed Hindustan Lever and had still
rendered the opinion in Madhu Intra, it would have been binding on the company Judge of this court. But in
Madhu Intra not noticing Hindustan Lever and it being apparent that the question has been answered otherwise
by the Supreme Court, it is the Supreme Court view that has to be followed.
In Re. Delhi Towers Limited vs. GNCT of Delhi [2010] 159 Comp Case 129 (Del.) Hon’ble Delhi Court held that,
“there can therefore be no manner of doubt, that even if the legislature had not effected the amendment and
included the clause in sub-section (g) of Section 2 of the Bombay Stamp Act, it made no difference to the legal
issue at all. A scheme of amalgamation approved by a court in exercise of jurisdiction under the Companies Act,
1956 and given effect to thereafter, where under property is conveyed from one company to another, is covered
ǦϐǮ ǯ Ǥ
therefore be eligible to stamp duty under section 3 of the Indian Stamp Act.”
In the case of Li Taka Pharmaceuticals Ltd. vs. State of Maharashtra And Other [AIR 1997 Bom 7] Hon’ble Bombay
High Court held that an order under section 394 is founded or based upon compromise or arrangement between
the two companies of transferring assets and liabilities of one company to another company known as
DzǦ dzDzdzϐ ʹȋͳȌ
which includes every document by which any right or liability is transferred.
Apart from the above cited case laws also in Ambica Quarry works vs. State of Gujrat, AIR 1987 SC 1073; Orient
Paper Industry Ltd. v. State of Orissa, AIR 1991 SC 672; State of Orissa vs. Sudhansu Sekhar Misra, AIR 1968 SC 647;
Krishna Kumar vs. Union Bank of India, AIR 1990 SC 1782, The Hon’ble Supreme Court of India in the series of
judgments in the above cited cases has held that an order of amalgamation is subject to Stamp Duty in the
context of the provisions of the Bombay Stamp Act where the chargeability and the basis of chargeability of an
order of amalgamation have been expressly spelt out, in the absence of such express provisions regarding
chargeability and basis of chargeability of an order of amalgamation in the Stamp Acts of other states, it is legally
doubtful whether orders of amalgamation in such States would be subject to Stamp Duty.
time of registration of properties in the name of Transferee Company. Payment of Stamp Duty is an important
aspect to be considered before going in for a merger especially in those cases where the asset of the Transferor
ϐ Ǥ
4. SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 2011
If an acquisition is contemplated by way of issue of new shares, or the acquisition of existing shares or voting rights,
of a listed company, to or by an acquirer, the provisions of the Takeover Code are applicable. The Takeover Code
regulates both direct and indirect acquisitions of shares or voting rights in, and control over a target company. The
key objectives of the Takeover Code are to provide the shareholders of a listed company with adequate information
about an impending change in control of the company or substantial acquisition by an acquirer, and provide them
with an exit option in case they do not wish to retain their shareholding in the company.
5. The Competition Act, 2002
The provisions of Competition Act and the Competition Commission of India (Procedure in regard to the Transaction
of Business relating to Combinations) Regulations, 2011 are to be complied with.
6. The Foreign Exchange Management (Cross Border Merger) Regulations, 2018
ȋȌǡʹͲͳͺϐϐ
Ǥ ͵ͺͻȀ ʹͲͳͺǦ ʹͲ ǡ ʹͲͳͺ ϐ Ǥ
Regulations, merger transactions in compliance with these regulations shall be deemed to have been approved by
RBI, and hence, no separate approval should be required. In other cases, merger transactions require prior RBI
approval.
7. Provisions of the Companies Act, 2013
The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 made under
Chapter XV of the Companies Act, 2013
ǡ ʹͲͳ͵
Section 230 to 240 contains provisions on ‘Compromises, “Corporate Action” means any action taken by the
Arrangements and Amalgamations’. The scope of the company relating to transfer of shares and all the
Companies (Compromises, Arrangements and ϐ ǡ
ȌǡʹͲͳ shares, split, consolidation, fraction shares and right
the Companies Act, 2013 includes detailed procedural issue to the acquirer.
aspects relating to substantive law.
Power to Compromise or make Arrangements with Members or Creditors
Tribunal to order meeting of members/creditors, etc.
Section 230(1) states that when a compromise or arrangement is proposed –
(a) between a company and its creditors or any class of them; or
(b) between a company and its members or any class of them,
the Tribunal may, on the application of the (i) company, or (ii) any creditor or (iii) member of the company, or (iv)
in the case of a company which is being wound up, of the liquidator, appointed under the Companies Act, 2013 or
under Insolvency and Bankruptcy Code, 2016, as the case may be, order a meeting of the creditors or class of
creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such
manner as the Tribunal directs.
For the purposes of this sub-section, arrangement includes a reorganisation of the company’s share capital by the
consolidation of shares of different classes or by the division of shares into shares of different classes, or by both
these methods.
464 Lesson 12 • EP-CL
The Creditors’ Responsibility Statement shall be in Form CAA-1 and be included in the scheme of
corporate debt restructuring. A scheme of corporate debt restructuring as referred to in clause (c) of
sub-section (2) of section 230 of the Act shall mean a scheme that restructures or varies the debt
obligations of a company towards its creditors.
(ii) safeguards for the protection of other secured and unsecured creditors;
(iii) report by the auditor that the fund requirements of the company after the corporate debt restructuring
as approved shall conform to the liquidity test based upon the estimates provided to them by the
Board;
ȋȌ ϐ
Reserve Bank of India, a statement to that effect; and
(v) a valuation report in respect of the shares and the property and all assets, tangible and intangible,
movable and immovable, of the company by a registered valuer.
The notice of the meeting pursuant to the order of the Tribunal shall be in Form No. CAA.2 and shall be sent
individually to each of the creditors or members. The notice shall be sent by the chairperson appointed for the
meeting, or, if the Tribunal so directs, by the company (or its liquidator), or any other person as the Tribunal may
direct, by registered post or speed post or by courier or by e-mail or by hand delivery or any other mode as directed
ϐǤ
the meeting to the creditors and members shall be accompanied by a copy of the scheme of compromise or
arrangement.
Such notice and other documents shall also be placed on the website of the company, if any, and in case of a listed
company, these documents shall be sent to the Securities and Exchange Board and stock exchange where the
securities of the companies are listed, for placing on their website and shall also be published in newspapers in such
manner as may be prescribed.
When the notice for the meeting is also issued by way of an advertisement, it shall indicate the time within which
copies of the compromise or arrangement shall be made available to the concerned persons free of charge from the
ϐ Ǥ
The notice of the meeting shall be advertised in Form No. CAA - 2 in at least one English newspaper and in at least
ϐ
situated, or such newspaper as may be directed by the Tribunal and shall also be placed, not less than thirty days
ϐǡ ǡ
where the securities of the company are listed. Where separate meetings of classes of creditors or members are to
be held, a joint advertisement for such meetings may be given.
Notice to provide for voting by themselves or through proxy or through postal ballot
Sub-section (4) of section 230 states that a notice under sub-section (3) shall provide that the persons to whom the
notice is sent may vote in the meeting either themselves or through proxies or by postal ballot to the adoption of the
compromise or arrangement within one month from the date of receipt of such notice.
Who can object to the scheme?
Any objection to the compromise or arrangement shall be made only by persons holding not less than ten per cent
ϐ
ϐ Ǥ
Notice to be sent to the regulators seeking their representations
Section 230(5) states that a notice under sub-section (3) along with all the documents in Form CAA- 3 as may be
prescribed shall also be sent to
• the Central Government, the Registrar of Companies, the Income-tax authorities, in all cases;
Ȉ ǡ ǡ ǡϐ
Liquidator, the Competition Commission of India established under sub-section (1) of section 7 of the
Competition Act, 2002, if necessary, and
• such other sectoral regulators or authorities which are likely to be affected by the compromise or arrangement
and
shall require that representations, if any, to be made by them shall be made within a period of thirty days from
the date of receipt of such notice, failing which, it shall be presumed that they have no representations to
make on the proposals.
ϐ
The chairperson appointed for the meeting of the company or other person directed to issue the advertisement and
ϐϐϐ
ϐǡ ǡ
notices and the advertisement have been duly complied with.
Lesson 12 • An overview of Corporate Reorganisation 467
In case of default, the application along with copy of the last order issued shall be posted the tribunal for such
ϐǤ
Voting
The person who receives the notice may within one month
from date of receipt of the notice vote in the meeting either Rule 13 of the Companies(Compromises,
in person of through electronics means to the adoption of Arrangements and Amalgamations)Rules, 2016
the scheme of compromise and arrangement.
The voting at the meeting or meetings held in
Explanation. For the purpose of voting by persons who pursuance of the directions of the tribunal under
receive the notice as shareholder of creditor under this Rule 5 on all resolutions shall take place by poll or
rule- by voting through electronics means.
(a) “shareholding” shall mean the shareholding of the The report of the result of the meeting under sub
members of the class who are entitled to vote on the rule (1) shall be in Form no CAA.4 and shall state
proposal; and accurately the number of creditors or class of
(b) “outstanding debt” shall mean all debt owed by the creditors, as the case may be, who were present and
company to the respective class or classes of creditors that who voted at the meeting either in person or by
ϐ proxy, and where applicable, who voted through
statement, or if such statement is more than six months electronics means, their individual values and the
ǡϐ way they voted.
the date of application by more than six months.
Rule 10 of the Companies(Compromises, Arrangements and Amalgamations)Rules, 2016 provides for the
provision of Proxy:
Voting by proxy shall be permitted , provided a proxy in the prescribed form duly signed by the person entitled to
ϐ ϐ Ͷͺ
meeting.
Where a body corporate which is a member or creditor (including holder of debentures) of a company authorizes
any person to act as its representative at the meeting, of the members or creditors of the company , or of any class
of them, as the case may be, a copy of the resolution of the board of directors or other governing body of such
ǡ ϐ
ǡǡ ǡϐ
ϐ ͶͺǤ
The proxy of a member or creditor blind or incapable of writing maybe accepted if such member or creditor has
attached his signature or mark thereto in presence of a witness who shall add to his signature his description and
address : provided that all insertions have been made by him at the request and in the presence of member or
creditor before he attached his signature or mark.
The proxy of a member or creditor who does not know English maybe accepted if it is executed in the manner
Ǧ ϐ
language known to him , and gives the member’s or creditor’s name in the English below the signature.
The chairperson of the meeting (or where there are separate meetings , the chairperson of each meeting) shall,
ϐǡϐǡ
meeting submit a report to the Tribunal on the result of the meeting in Form No. CAA.4.
468 Lesson 12 • EP-CL
Every creditor or member entitled to attend the meeting shall be furnished by the company , free of charge , within
one day on a requisition being made for the same, with a copy of the scheme of the proposed compromise or
arrangement together with a copy of the statement required to be furnished under section 230 of the Act.
ϐ
Rule 15 of the Companies(Compromises, Arrangements and Amalgamations)Rules, 2016 provides that, where the
proposed compromise or arrangement is agreed to by the members or creditors or both as the case may be with or
ϐ ǡ ȋȌǡǡϐ ǡ
present a petition to the tribunal in Form No.CAA.5 for sanction of the scheme of compromise or arrangement.
Where a compromise or arrangement is proposed for the purposes of or in connection with scheme for the
reconstruction of any company proposed for the purposes of or in connection with scheme for the reconstruction
of any company or companies or for the amalgamation of any two or more companies, the petition shall pray for
appropriate orders and directions under section 230 read with section 232 of the Act.
ϐ ǡ
it shall be open to any creditor or member as the case may be , with the leave of the tribunal, to present the petition
and the company shall be liable for the cost thereof.
Approval and sanction of the scheme
Section 230(6) states that when at a meeting held in pursuance of sub-section (1), majority of persons representing
three-fourths in value of the creditors, or class of creditors or members or class of members, as the case may be,
voting in person or by proxy or by postal ballot, agree to any compromise or arrangement and if such compromise
or arrangement is sanctioned by the Tribunal by an order, the same shall be binding on the company, all the creditors,
or class of creditors or members or class of members, as the case may be, or, in case of a company being wound up,
on the liquidator appointed under this Act or under the Insolvency and Bankruptcy Code, 2016, as the case may be
and the contributories of the company.
Order of the Tribunal sanctioning the scheme to provide for the following matters [Section 230(7)]
An order made by the Tribunal under sub-section (6) shall provide for all or any of the following matters, namely:—
(a) where the compromise or arrangement provides for conversion of preference shares into equity shares, such
preference shareholders shall be given an option to either obtain arrears of dividend in cash or accept equity
shares equal to the value of the dividend payable;
(b) the protection of any class of creditors;
(c) if the compromise or arrangement results in the variation of the shareholders’ rights, it shall be given effect
to under the provisions of section 48;
(d) if the compromise or arrangement is agreed to by the creditors under sub-section (6), any proceedings
pending before the Board for Industrial and Financial Reconstruction established under section 4 of the Sick
Industrial Companies (Special Provisions) Act, 1985 shall abate;
(e) such other matters including exit offer to dissenting shareholders, if any, as are in the opinion of the Tribunal
necessary to effectively implement the terms of the compromise or arrangement.
In case of Government Company - In Section 231 for the word “Tribunal” the words “Central Government” shall
ǤǦϔ ͷ ǡͶͷͽ
470 Lesson 12 • EP-CL
In the matter of Joint Commissioner of Income Tax (OSD), Circle (3)(3)-1 & Ors. (Appellants) vs.
Reliance Jio Infocomm Ltd. & Ors. (Respondents)
Mere fact that a Scheme of Arrangement may result in reduction of tax liability does not furnish
a basis for challenging the validity of the same.
The National Company Law Appellate Tribunal (NCLAT), held that without going to the record and without
placing any evidence or substantiating the allegation of avoidance of tax by appearing before the Tribunal, it
was not open to the income tax department to hold that the composite scheme of arrangement amongst the
petitioner companies and their respective shareholders and creditors is giving undue favour to the shareholders
of the company and also the overall scheme of arrangement results into tax avoidance.
The NCLAT observed that mere fact that a scheme may result in reduction of tax liability does not furnish a
basis for challenging the validity of the same. The Income Tax Department, which sought for liberty, while
accepted by the Petitioner Companies (Respondents herein) and the NCLT, Ahmedabad bench while approving
the Composite Scheme of Arrangement has granted liberty. Such liberty to the Income Tax Department to
enquire into the matter, if any part of the Composite Scheme of Arrangement amounts to tax avoidance or is
against the provisions of the Income Tax and is to let it take appropriate steps if so required. Thus, NCLAT
upheld the decision of NCLT, Ahmedabad bench and in view of the liberty given to the Income Tax Department
decided not to interfere with the Scheme of Arrangement as approved by the Tribunal and dismissed the
ϐǤ
“Amalgamation”, in relation to companies, means the merger of one or more companies with another company or
the merger of two or more companies to form one company (the company or companies which so merge being
referred to as the amalgamating company or companies and the company with which they merge or which is formed
as a result of the merger, as the amalgamated company) in such a manner that –
(i) all the property of the amalgamating company or companies immediately before the amalgamation becomes
the property of the amalgamated company by virtue of the amalgamation;
(ii) all the liabilities of the amalgamating company or companies immediately before the amalgamation become
the liabilities of the amalgamated company by virtue of the amalgamation;
(iii) shareholders holding not less than three-fourths in value of the shares in the amalgamating company or
companies (other than shares already held therein immediately before the amalgamation by, or by a nominee
for, the amalgamated company or its subsidiary) become shareholders of the amalgamated company by
virtue of the amalgamation,
otherwise than as a result of the acquisition of the property of one company by another company pursuant to the
purchase of such property by the other company or as a result of the distribution of such property to the other
ϐǦ Ǥ
Tribunal’s power to call meeting of creditors or members, with respect to merger or amalgamation
of companies
Section 232(1) states that when an application is made to the Tribunal under section 230 for the sanctioning of a
compromise or an arrangement proposed between a company and any such persons as are mentioned in that
section, and it is shown to the Tribunal –
(a) that the compromise or arrangement has been proposed for the purposes of, or in connection with, a scheme
for the reconstruction of the company or companies involving merger or the amalgamation of any two or
more companies; and
(b) that under the scheme, the whole or any part of the undertaking, property or liabilities of any company
(hereinafter referred to as the transferor company) is required to be transferred to another company
(hereinafter referred to as the transferee company), or is proposed to be divided among and transferred to
two or more companies,
the Tribunal may on such application, order a meeting of the creditors or class of creditors or the members or class
of members, as the case may be, to be called, held and conducted in such manner as the Tribunal may direct and the
provisions of sub-sections (3) to (6) of section 230 shall apply mutatis mutandis.
Where the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for
the reconstruction of any company or companies or the amalgamation of any two or more companies , and the
matters involved cannot be dealt with or dealt with adequately on the petition for sanction of the compromise or
arrangement, an application shall be made to the tribunal under section 232 of the Act, by a notice of admission
ϐ Ǥ
Notice of admission in such cases shall be given in such manner and to such persons as the tribunal may direct.
Circulation of documents for members’/creditors’ meeting
Section 232(2) states that when an order has been made by the Tribunal under sub-section (1), merging companies
or the companies in respect of which a division is proposed, shall also be required to circulate the following for the
meeting so ordered by the Tribunal, namely:—
(a) the draft of the proposed terms of the scheme drawn up and adopted by the directors of the merging company;
ȋȌ ϐ ϐǢ
(c) a report adopted by the directors of the merging companies explaining effect of compromise on each class of
shareholders, key managerial personnel, promoters and non-promoter shareholders laying out in particular
ǡ ϐ Ǣ
472 Lesson 12 • EP-CL
No transferee company can hold shares in its own name or under any trust
(c) the continuation by or against the transferee company of any legal proceedings pending by or against any
transferor company on the date of transfer;
(d) dissolution, without winding-up, of any transferor company;
(e) the provision to be made for any persons who, within such time and in such manner as the Tribunal directs,
dissent from the compromise or arrangement;
(f) where share capital is held by any non-resident shareholder under the foreign direct investment norms or
ϐ ǡ
ϐ
order;
(g) the transfer of the employees of the transferor company to the transferee company;
(h) when the transferor company is a listed company and the transferee company is an unlisted company,—
(i) the transferee company shall remain an unlisted company until it becomes a listed company;
(ii) if shareholders of the transferor company decide to opt out of the transferee company, provision shall
ϐ Ǧ
determined price formula or after a valuation is made, and the arrangements under this provision may
be made by the Tribunal.
The amount of payment or valuation under this clause for any share shall not be less than what has
ϐ Ǣ
(i) where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised
capital shall be set-off against any fees payable by the transferee company on its authorised capital subsequent
to the amalgamation; and
(j) such incidental, consequential and supplemental matters as are deemed necessary to secure that the merger
or amalgamation is fully and effectively carried out.
ϐ ǡ ǡ
compromise or arrangement is in conformity with the accounting standards prescribed under section 133.
Transfer of property or liabilities
Sub-section (4) of Section 232 states that an order under this section provides for the transfer of any property or
liabilities, then, by virtue of the order, that property shall be transferred to the transferee company and the liabilities
shall be transferred to and become the liabilities of the transferee company and any property may, if the order so
directs, be freed from any charge which shall by virtue of the compromise or arrangement, cease to have effect.
ϐ ϐ
An order made under section 232 read with section 230 of the act shall be in Form No CAA.7 with such variation as
the circumstances may require.
ʹ͵ʹȋͷȌ ϐ
ϐ ϐ Ǥ
Effective date of the scheme
Section 232(6) states that the scheme under this section shall clearly indicate an appointed date from which it shall
be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the
appointed date.
ϐ ȀȀ ϐ
completion of the scheme
Section 232(7) states that every company in relation to which the order is made shall, until the completion of the
ǡϐ Form CAA.8ʹͳͲ ϐ
ϐ
whether the scheme is being complied with in accordance with the orders of the Tribunal or not.
Punishment
ʹ͵ʹȋͺȌ ʹ͵ʹȋͷȌǤǤϐϐ
ǡ ϐ
to a penalty of twenty thousand rupees, and where the failure is a continuing one, with a further penalty of one
ϐ ǡ
rupees.
Explanation under Section 232
For the purpose of the Section, —
(i) in a scheme involving a merger, where under the scheme the undertaking, property and liabilities of one or
more companies, including the company in respect of which the compromise or arrangement is proposed,
are to be transferred to another existing company, it is a merger by absorption, or
where the undertaking, property and liabilities of two or more companies, including the company in respect
of which the compromise or arrangement is proposed, are to be transferred to a new company, whether or
not a public company, it is a merger by formation of a new company;
(ii) references to merging companies are in relation to a merger by absorption, to the transferor and transferee
companies, and, in relation to a merger by formation of a new company, to the transferor companies;
(iii) a scheme involves a division, where under the scheme the undertaking, property and liabilities of the company
in respect of which the compromise or arrangement is proposed are to be divided among and transferred to
two or more companies each of which is either an existing company or a new company; and
(iv) property includes assets, rights and interests of every description and liabilities include debts and obligations
of every description.
474 Lesson 12 • EP-CL
In case of Government Company - In Section 232 for the word “Tribunal” the words “Central Government” shall be
ǤǦϔ ͷ ǡͶͷͽǤ
In the matter of Mohit Agro Commodities & Ors. NCLAT, dated June 28, 2021
When the ‘Transferor and Transferee Company’ involve a Parent Company and a Wholly Owned
Subsidiary the meeting of Equity Shareholders, Secured and Unsecured Creditors can be dispensed with
as the rights of the Equity Shareholders of the ‘Transferee Company’ are not being affected
Fact of the Case
The Appellant CompanyȋǮǯǮǯȌϐ
230 to 232 and other relevant provisions of the Companies Act, 2013 seeking dispensation of the meeting of the
Equity Shareholders, Secured Creditors and Unsecured Creditors in respect of the scheme of Amalgamation of
the ‘Transferor Company’ with the ‘Transferee Company’ with effect from the appointed date on the aggrieved
terms and conditions has set out in the scheme in accordance with Sections 230 to 232 of the Companies Act,
2013 and other applicable provisions of the Act. It is contented that there is no change in the capital structure
of the ‘Transferor Company’ till the date of approval of the schemes by the Board of Directors.
It is further stated that the ‘Transferor Company’ is a Wholly Owned Subsidiary of the ‘Transferee Company’ and
that both the Companies are incorporated in similar type of nature of activities and that the ‘Transferee
Company’ had acquired the ‘Transferor Company’ as a business supportive mechanism for ease of operations.
Judgment
The NCLAT has observed that Section 232(1) of the Companies Act, 2013 uses the word ‘may’ which introduces
an element of discretion to the Tribunal to be exercised in the interest of justice in appropriate situations.
ʹ͵ʹ ϐ ȋȌ
and (b) of sub-Section (1) of Section 232 are met.
In the instant case the amalgamation sought for is between a Wholly Owned Subsidiary and the Holding
Company. The point which needs to be noted is:
• whether such an arrangement alters the rights of the Stakeholders of the Company?
• whether such an amalgamation has any bearing internally on Creditors/Members of both the Companies?
• whether not holding the subject meeting would amount to violation of any of the provisions of the
Companies Act, 2013?
• whether the Tribunal can exercise their discretion when the ‘Transferor Company’ is a Wholly Owned
Ǯǯϐ Ǯǯ
the merger is not affecting the rights of the Shareholders or the Creditors?
Therefore, it is held that the rights and liabilities of Secured and Unsecured Creditors were not getting affected
in any manner by way of the proposed scheme as no new shares are being issued by the ‘Transferor Company’
and no compromise is offered to any Secured and Unsecured Creditors of the ‘Transferee Company’. Hence,
when the ‘Transferor and Transferee Company’ involve a Parent Company and a Wholly Owned Subsidiary the
meeting of Equity Shareholders, Secured Creditors and Unsecured Creditors can be dispensed with as the rights
of the Equity Shareholders of the ‘Transferee Company’ are not being affected.
According to Rule 25, of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 for the
purpose of clause (b) and (d) of sub-section (1) of section 233 of the Act, the notice of the meeting to the members
and creditors shall be accompanied by-
(a) a statement, as far as applicable, referred to in sub section (3) of section 230 of the act read with sub rule (3)
of rule 6 hereof;
(b) The declaration of solvency made in pursuance of clause (c) of sub-section (1) of section 233 of the Act in
Form No. CAA.10; and
(c) A copy of the scheme.
The Central Government has prescribed class of Companies between which a scheme of merger or amalgamation
under section 233 of the Act may be entered into, namely:-
(i) two or more start-up companies; or
(ii) one or more start-up company with one or more small company.
Explanation.- For the purposes of this sub-rule, “start-up company” means a private company incorporated
ǡʹͲͳ͵ ǡͳͻͷ ϐ
number G.S.R. 127 (E), dated the 19th February, 2019 issued by the Department for Promotion of Industry and
Internal Trade.
each of the meetings in Form no. CAA.11 with the central government, along with the fees as provided under the
ȋϐ ȌǡʹͲͳͶǤ
ǡʹͷȋͶȌȋȌ ϐǡ ǤǤͳͳȂ
(i) the registrar of companies in form no. GNL-1 along with fees provided under the companies ( Registration
ϐ ȌǡʹͲͳͶǢ
ȋȌ ϐ Ǥ
Transferee Company not to hold any share in its own name or trust and all such shares are to be
cancelled or extinguished
Section 233(10) states that a transferee company shall not on merger or amalgamation, hold any shares in its own
name or in the name of any trust either on its behalf or on behalf of any of its subsidiary or associate company and
all such shares shall be cancelled or extinguished on the merger or amalgamation.
ϐn application with Registrar along with the scheme registered
ʹ͵͵ȋͳͳȌ ϐ
scheme registered, indicating the revised authorised capital and pay the prescribed fees due on revised capital. The
fee, if any, paid by the transferor company on its authorised capital prior to its merger or amalgamation with the
transferee company shall be set-off against the fees payable by the transferee company on its authorised capital
enhanced by the merger or amalgamation.
Section 233(12) provides that the provisions of Section 233 shall mutatis mutandis apply to a company or companies
ϐǦ ȋͳȌ ʹ͵Ͳ
division or transfer of a company referred to clause (b) of subsection (1) of section 232.
The Central Government may provide for the merger or amalgamation of companies in such manner as may be
prescribed.
ϐ ʹ͵͵
of the act, the concerned companies may , at their discretion, opt to undertake such schemes under sections 230 to
232 of the Act, including where the condition prescribed in clause (d) of sub-section (1) of section 233 of the act has
not been met.
A company covered under this section may use the provisions of section 232 for the approval of any scheme for
merger or amalgamation.
MERGER OR AMALGAMATION OF A COMPANY WITH A FOREIGN COMPANY
Section 234(2) states that subject to the provisions of any other law for the time being in force, a foreign company,
may with the prior approval of the Reserve Bank of India, merge into a company registered under this Act or vice
versa and the terms and conditions of the scheme of merger may provide, among other things, for the payment of
478 Lesson 12 • EP-CL
consideration to the shareholders of the merging company in cash, or in Depository Receipts, or partly in cash and
partly in Depository Receipts, as the case may be, as per the scheme to be drawn up for the purpose.
For the purposes of sub-section (2), the expression “foreign company” means any company or body corporate
incorporated outside India whether having a place of business in India or not.
Section 234(1) states that the provisions of this Chapter unless otherwise provided under any other law for the
time being in force, shall apply mutatis mutandis to schemes of mergers and amalgamations between companies
ϐ
time to time by the Central Government. The Central Government may make rules, in consultation with the Reserve
Bank of India, in connection with mergers and amalgamations provided under this section.
Rule 25A of the of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016
(1) A foreign company incorporated outside India may merge with an Indian company after obtaining prior
approval of Reserve Bank of India and after complying with the provisions of sections 230 to 232 of the Act and
these rules.
(2) (a) A c ϐ
Annexure B after obtaining prior approval of the Reserve Bank of India and after complying with
provisions of sections 230 to 232 of the Act and these rules.
(b) The transferee company shall ensure that valuation is conducted by valuers who are members of a
recognised professional body in the jurisdiction of the transferee company and further that such
valuation is in accordance with internationally accepted principles on accounting and valuation. A
declaration to this effect shall be attached with the application made to Reserve Bank of India for
obtaining its approval under clause (a) of this sub-rule.
(͵Ȍ ϐ ʹ͵Ͳ
ʹ͵ʹ ϐǦȋͳȌǦȋʹȌǡ
as the case may be.
Explanation 1Ǥ Dz dz ϐ ȋʹͲȌ
section 2 of the Act and the term “foreign company” means a company or body corporate incorporated outside
India whether having a place of business in India or not.
Explanation 2Ǥ ǡ ϐ
consultation of the Reserve Bank of India.
(ii) a company, its directors, and any person entrusted with the management of the company;
(iii) directors of companies referred to in item (i) and (ii) of this sub-clause and associates of such directors;
(iv) promoters and members of the promoter group;
(v) immediate relatives;
(vi) a mutual fund, its sponsor, trustees, trustee company, and asset management company;
(vii) a collective investment scheme and its collective investment management company, trustees and trustee
company;
(viii) a venture capital fund and its sponsor, trustees, trustee company and asset management company;
(viiia) an alternative investment fund and its sponsor, trustees, trustee company and manager;
(ix) a merchant banker and its client, who is an acquirer;
(x) a portfolio manager and its client, who is an acquirer;
ȋȌ ǡϐ ǡ
subsidiary of the acquirer, and where the acquirer is an individual, of the immediate relative of such individual:
Provided that this sub-clause shall not apply to a bank whose sole role is that of providing normal commercial
banking services or activities in relation to an open offer under these regulations;
(xii) an investment company or fund and any person who has an interest in such investment company or fund as
a shareholder or unitholder having not less than 10 per cent of the paid-up capital of the investment company
or unit capital of the fund, and any other investment company or fund in which such person or his associate
holds not less than 10 per cent of the paid-up capital of that investment company or unit capital of that fund:
Provided that nothing contained in this sub-clause shall apply to holding of units of mutual funds registered
with the Board;
Explanation. – For the purposes of this clause “associate” of a person means,–
(a) any immediate relative of such person;
(b) trusts of which such person or his immediate relative is a trustee;
ȋ Ȍ ϐ Ǣ
(d) members of Hindu undivided families of which such person is a coparcener;
As per Section 236(1) of the Act, in the event of an acquirer, or a person acting in concert with such acquirer,
becoming registered holder of ninety per cent or more of the issued equity share capital of a company, or in the
event of any person or group of persons becoming ninety per cent majority or holding ninety per cent. of the issued
equity share capital of a company, by virtue of an amalgamation, share exchange, conversion of securities or for any
other reason, such acquirer, person or group of persons, as the case may be, shall notify the company of their
intention to buy the remaining equity shares.
As per Section 236(2) of the Act, the acquirer, person or group of persons under sub-section (1) shall offer to the
minority shareholders of the company for buying the equity shares held by such shareholders at a price determined
on the basis of valuation by a registered valuer in accordance with such rules as may be prescribed.
For the purposes of sub-section (2) of section 236 of the Act, the registered valuer shall determine the price
(hereinafter called as offer price) to be paid by acquirer, person or group of persons referred to in sub-section of
section 236 of the Act for purchase of equity shares of the minority shareholders of the company.
Without prejudice to the provisions of sub-sections (1) and (2), the minority shareholders of the company may offer
to the majority shareholders to purchase the minority equity shareholding of the company at the price determined
as in accordance with Rule 27 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016,
which is as under:
Lesson 12 • An overview of Corporate Reorganisation 481
The majority shareholders shall deposit an amount equal to the value of shares to be acquired by them under sub-
section (2) or sub-section (3), as the case may be, in a separate bank account to be operated by company whose
shares are being transferred for at least one year for payment to the minority shareholders and such amount shall
be disbursed to the entitled shareholders within sixty days.
Such disbursement shall continue to be made to the entitled shareholders for a period of one year, who for any
reason had not been made disbursement within the said period of sixty days or if the disbursement has been made
within the aforesaid period of sixty days, fail to receive or claim payment arising out of such disbursement (Sec
236(4)).
In the event of a purchase under this section, company whose shares are being transferred shall act as a transfer
agent for receiving and paying the price to the minority shareholders and for taking delivery of the shares and
delivering such shares to the majority, as the case may be (Sec 236(5)).
ϐ ǡ
ϐ ǡ
authorised to issue shares in lieu of the cancelled shares and complete the transfer in accordance with law and
make payment of the price out of deposit made under sub-section (4) by the majority in advance to the minority by
dispatch of such payment (Sec 236(6)).
In the event of a majority shareholder or shareholders requiring a full purchase and making payment of price by
deposit with the company for any shareholder or shareholders who have died or ceased to exist, or whose heirs,
successors, administrators or assignees have not been brought on record by transmission, the right of such
shareholders to make an offer for sale of minority equity shareholding shall continue and be available for a period
of three years from the date of majority acquisition or majority shareholding (Sec 236(7)).
Where the shares of minority shareholders have been acquired in pursuance of this section and as on or prior to the
ǡǦϐ Ǥ
shareholding negotiates or reach an understanding on a higher price for any transfer, proposed or agreed upon, of
482 Lesson 12 • EP-CL
the shares held by them without disclosing the fact or likelihood of transfer taking place on the basis of such
negotiation, understanding or agreement, the majority shareholders shall share the additional compensation so
received by them with such minority shareholders on a pro rata basis (Sec 236(8)).
When a shareholder or the majority equity shareholder fails to acquire full purchase of the shares of the minority
equity shareholders, then, the provisions of this section shall continue to apply to the residual minority equity
shareholders, even though,—
(a) the shares of the company of the residual minority equity shareholder had been delisted; and
ȋȌ ϐ
under the Securities and Exchange Board of India Act, 1992 (15 of 1992), had elapsed (Section 236(9)).
Rule 26 A of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 pertains to
Purchase of minority shareholding held in demat form.
(1) The company shall within two weeks from the date of receipt of the amount equal to the price of shares to
be acquired by the acquirer, under section 236 of the Act, verify the details of the minority shareholders holding
shares in dematerialised form.
ȋʹȌ ϐ Ǧ ȋͳȌǡ
registered post or by speed post or by courier or by email about a cut-off date, which shall not be earlier than
one month after the date of sending of the notice, on which the shares of minority shareholders shall be debited
from their account and credited to the designated DEMAT account of the company, unless the shares are credited
ǡ ϐ ǡ ǦǤ
(3) A copy of the notice served to the minority shareholders under sub-rule (2), shall also be published
simultaneously in two widely circulated newspapers (one in English and one in vernacular language) in the
ϐ
company, if any.
(4) The company shall inform the depository immediately after publication of the notice under sub-rule (3)
regarding the cut-off date and submit the following declarations stating that:
(a) the corporate action is being effected in pursuance of the provisions of section 236 of the Act;
(b) the minority shareholders whose shares are held in dematerialised form have been informed about the
corporate action a copy of the notice served to such shareholders and published in the newspapers to be
attached;
(c) the minority shareholders shall be paid by the company immediately after completion of corporate action;
(d) any dispute or complaints arising out of such corporate action shall be the sole responsibility of the company.
(5) For the purposes of effecting transfer of shares through corporate action, the Board shall authorise the
Company Secretary, or in his absence any other person, to inform the depository under sub-rule (4), and to
submit the documents as may be required under the said sub-rule.
(6) Upon receipt of information under sub-rule (4), the depository shall make the transfer of shares of the
minority shareholders, who have not, on their own, transferred their shares in favour of the acquirer, into the
designated DEMAT account of the company on the cut-off date and intimate the company.
(7) After receiving the intimation of successful transfer of shares from the depository under sub-rule (6), the
company shall immediately disburse the price of the shares so transferred, to each of the minority shareholders
after deducting the applicable stamp duty, which shall be paid by the company, on behalf of the minority
shareholders, in accordance with the provisions of the Indian Stamp Act, 1899 (2 of 1899).
(8) Upon successful payment to the minority shareholders under sub-rule (7), the company shall inform the
depository to transfer the shares of such shareholders, kept in the designated DEMAT account of the company,
to the DEMAT account of the acquirer.
Lesson 12 • An overview of Corporate Reorganisation 483
Explanation. -The company shall continue to disburse payment to the entitled shareholders, where disbursement
ϐǡ
disbursement.
ȋͻȌ ǡ ϐ ǡ
such shares and payment of dividend, or where such shares are pledged or hypothecated under the provisions
of the Depositories Act, 1996 (22 of 1996), the depository shall not transfer the shares of the minority
shareholders to the designated DEMAT account of the company under sub-rule (6).
Explanation.-For the purposes of this rule, if "cut-off date" falls on a holiday, the next working day shall be
deemed to be the "cut-off date”.
The copies of every order made under this section shall, as soon as may be after it has been made, be laid before
each House of Parliament.
Registration of offer of schemes involving transfer of shares [Section 238]
In relation to every offer of a scheme or contract involving the transfer of shares or any class of shares in the
transferor company to the transferee company under section 235,—
484 Lesson 12 • EP-CL
(a) every circular containing such offer and recommendation to the members of the transferor company by its
directors to accept such offer shall be accompanied by such information and in the manner as prescribed
under Rule 28 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 which states
that every circular containing the offer of scheme or contract involving transfer of shares or any class of
shares and recommendation to the members of the transferor company by its directors to accept such offer,
shall be accompanied by such information as set out in Form No. CAA.15. The circular shall be presented to
the Registrar for registration.
(b) every such offer shall contain a statement by or on behalf of the transferee company, disclosing the steps it
has taken to ensure that necessary cash will be available; and
(c) every such circular shall be presented to the Registrar for registration and no such circular shall be issued
until it is so registered:
Provided that the Registrar may refuse, for reasons to be recorded in writing, to register any such circular
which does not contain the information required to be given under clause (a) or which sets out such
information in a manner likely to give a false impression, and communicate such refusal to the parties within
thirty days of the application.
An appeal shall lie to the Tribunal against an order of the Registrar refusing to register any circular under
sub-section (1).
ϐ
circular under sub-section (2) of section 238 of the Act and the said appeal shall be in the Form No. NCLT.9
ȋǡʹͲͳȌϐForm No. NCLT.6
(appended in the National Company Law Tribunal Rules, 2016).
The director who issues a circular which has not been presented for registration and registered under clause (c) of
sub-section (1), shall be liable to a penalty of one lakh rupees.
Preservation of books and papers of Amalgamated Companies [Section 239]
The books and papers of a company which has been amalgamated with, or whose shares have been acquired by,
another company under this Chapter shall not be disposed of without the prior permission of the Central Government
and before granting such permission, that Government may appoint a person to examine the books and papers or
any of them for the purpose of ascertaining whether they contain any evidence of the commission of an offence in
connection with the promotion or formation, or the management of the affairs, of the transferor company or its
amalgamation or the acquisition of its shares.
ϐ ǡǡ Ǥȏ ʹͶͲȐ
Notwithstanding anything in any other law for the time being in force, the liability in respect of offences committed
ϐ ǡ ǡ
shall continue after such merger, amalgamation or acquisition.
“MAJORITY RULE AND MINORITY RIGHTS”
The Principle of Non-interference (Rule in Foss v. Harbottle)
The general principle of company law is that every member holds equal rights with other members of the company
in the same class. The scale of rights of members of the same class must be held evenly for smooth functioning of
the company. In case of difference(s) amongst the members the issue is decided by a vote of the majority. Since the
majority of the members are in an advantageous position to run the company according to their command, the
minorities of shareholders are often oppressed. The company law provides for adequate protection for the minority
shareholders when their rights are trampled by the majority. But the protection of the minority is not generally
available when the majority does anything in the exercise of the powers for internal administration of a company.
The court will not usually intervene at the instance of shareholders in matters of internal administration, and will
not interfere with the management of a company by its directors so long they are acting within the powers conferred
on them under the articles of the company. In other words, the articles are the protective shield for the majority of
Lesson 12 • An overview of Corporate Reorganisation 485
shareholders who compose the Board of directors for carrying out their object at the cost of minority of shareholders.
The basic principle of non-interference with the internal management of company by the court is laid down in a
celebrated case of Foss v. Harbottle 67 E.R. 189; (1843) 2 Hare 461 that no action can be brought by a member against
the directors in respect of a wrong alleged to be committed to a company. The company itself is the proper party of
such an action.
Case Laws:
In Foss v. Harbottle, two shareholders, Foss and Turton brought an action on behalf of themselves and all other
shareholders against the directors and solicitor of the company alleging that by their concerted and illegal
transactions they had caused the company’s property to be lost to the company. It was also alleged that there
ϐǤ Ǥ
held by the court that the action could not be brought by the minority shareholders although there was nothing
to prevent the company itself, acting through the majority of its shareholders, bringing action. The wrong done
ϐǤ ȋǤǤǡȌ
the proper plaintiff for wrong done to the company, so the majority of members are competent to decide
whether to commence proceedings against the directors. The reasons for rule were nicely stated by Melish L.J.
in MacDougall v. Gardiner, (1875) 1 Ch. D. 13 (C.A.) at p. 25 in the following words:
“If the thing complained of is a thing which in substance the majority of company are entitled to do, or if
something has been done irregularly which the majority of the company are entitled to do regularly, or if
something has been done illegally which the majority of the company are entitled to do legally, there can be no
use in having litigation about it, the ultimate end of which is only that a meeting has to be called, and then
ultimately the majority gets its wishes.”
In Rajahmundry Electric Supply Co. v. Nageshwara Rao AIR 1956 SC 213, the Supreme Court observed that:
“The courts will not, in general, intervene at the instance of shareholders in matters of internal administration,
and will not interfere with the management of the company by its directors so long as they are acting within the
powers conferred on them under articles of the company. Moreover, if the directors are supported by the
majority shareholders in what they do, the minority shareholders can, in general do nothing about it.”
From the above it follows then that a company being a separate legal person from the members who compose it, the
company is the proper person to bring an action.
Case Laws:
In Ǥ ȋ1956) Ch. 565, a minority shareholder brought an action for damages against three
directors and against the company itself on the ground that they have been negligent in selling a mine
owned by the company for £ 82,000, whereas its real value was about £ 10,00,000. It was held that the
action was not maintainable. The judge observed, “It was open to the company, on the resolution of a
majority of the shareholders to sell the mine at a price decided by the company in that manner, and it was
open to the company by a vote of majority to decide that if the directors by their negligence or error of
judgement has sold the company’s mine at an undervalue, proceedings should not be taken against the
directors”.
In Edwards v. Halliwell (1950) 2 All. E.R. 1064, Jenkins, L.J. restated the rule in the following terms: “The rule in
Foss v. Harbottle comes to no more than this. First, the proper plaintiff in respect of wrong alleged to be done to
company is prima facie the company itself. Secondly, where the alleged wrong is a transaction which might be
made binding on the company by a simple majority of members, no individual member is allowed to maintain
an action in respect of that matter for the simple reason that, if a mere majority of the members of the company
is in favour of what has been done, then cadit quaestio... (cannot be questioned). If on the other hand, a simple
majority of members of the company or association is against what has been done, then there is no valid reason
why the company itself should not sue”.
486 Lesson 12 • EP-CL
Application of Foss v. Harbottle Rule in Indian context — The Delhi High Court in ICICI v. Parasrampuria Synthetic
Ltd. SSL, July 5, 1998 has held that an automatic application of Foss v. Harbottle Rule to the Indian corporate realities
would be improper. Here the Indian corporate sector does not involve a large number of small individual investors
ϐ ͺͲΨϐ Ǥ ϐ
provide entire funds for the continuous existence and corporate activities. Though they hold only a small percentage
ǡϐ ϐ ǯ ǡ
therefore, to exclude them or to render them voiceless on an application of the principles of Foss v. Harbottle Rule
would be unjust and unfair.
Exception to the Rule in Foss v. Harbottle
The rule in Foss v. Harbottle is not absolute but is subject to certain exceptions. In other words, the rule of supremacy
of the majority is subject to certain exceptions and thus, minority shareholders are not left helpless, but they are
protected by:
(a) the common law; and
(b) the provisions of the Companies Act, 2013.
The cases in which the majority rule does not prevail are commonly known as exceptions to the rule in Foss v.
Harbottle and are available to the minority. In all these cases an individual member may sue for declaration that the
resolution complained of is void, or for an injunction to restrain the company from passing it. The said rule will not
apply in the following case:
Lesson 12 • An overview of Corporate Reorganisation 487
The minority shareholders are empowered to bring action with a view to preventing the majority from oppression
Ǥϐ
in the study.
In Bennet Coleman & Co. and Ors. v. Union of India & Ors., (1977) 47 Com Cases 92 (Bom), the Division Bench of the
Bombay High Court held that Sections 397 and 398 of the Companies Act, 1956 are intended to avoid winding up of
the company if possible and keep it going while at the same time relieving the minority shareholders from acts of
oppression and mismanagement or preventing its affairs from being conducted in a manner prejudicial to public
interest. Thus, the Court has wide powers to supplant the entire corporate management by resorting to non-
ϐ
of advisers etc., who will be in charge of the affairs of the company.
The exceptions to the rule in Foss v. Harbottle are not limited to those covered above. Further exceptions may be
admitted where the rules of justice require that an exception to the rule should be made.
It should be noted that the ordinary civil courts are not deprived of the jurisdiction to decide the matters except
ȏPanipat Woollen & General
Mills Co.Ltd. v. R.L. Kaushik, (1969) 39 Com Cases 249 (Punj & Har)].
“MAJORITY RULE AND MINORITY RIGHTS” UNDER THE COMPANIES ACT, 2013
In India, the Companies Act attempts to maintain a balance between the rights of majority and minority shareholders
Ǧϐǡ
and thus protecting the minority shareholders.
The Companies Act, 1956 provided for protection of the minority shareholders from oppression and mismanagement
by the majority under Section 397 (Application to Company Law Board for relief in cases of oppression) and 398
(Application to Company Law Board for relief in cases of mismanagement).
͵ͻȋͳȌ ǡͳͻͷϐǮ
conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members’ while
ϐ ͵ͻͺȋͳȌǮ
prejudicial to public interest or in a manner prejudicial to the interests of the company or there has been a material
change in the management and control of the company, and by reason of such change it is likely that affairs of the
company will be conducted in a manner prejudicial to public interest or interest of the company’.
Right to apply to the Company Law Board in case of oppression and/or mismanagement was provided under Section
͵ͻͻ Ǧϐ
limit, as the case may be. However, the Central Government was also provided with the discretionary power to allow
any number of shareholders and/or members to apply for relief under Section 397 and 398 in case the limit
provided under Section 399 was not met.
ǡ ʹͲͳ͵
mismanagement of a company. Oppression and mismanagement of a company mean that the affairs of the company
are being conducted in a manner that is oppressive and biased against the minority shareholders or any member or
members of the company. To prevent the same, there are provisions for the prevention and mismanagement of a
company.
The Ministry of Corporate Affairs vide ϐ ǤǤͳͻ͵ͶȋȌͳ ʹͲͳϐ ʹͶͳʹͶͷ
ǡʹͲͳ͵Ǥ ʹͶϐvidϐ ǤǤʹͻͳʹȋȌͻǡʹͲͳǤ
These provisions are discussed in detail hereunder.
PREVENTION OF OPPRESSION AND MISMANAGEMENT
Meaning of Oppression
Dzdz Dzdz ϐ Ǥ
purpose of Company Law should be used in a broad generic sense and not in any strict literal sense.
488 Lesson 12 • EP-CL
The meaning of the term “oppression” as explained by Lord Cooper in the Scottish case of Elder v. Elder & Western
Ltd., (1952) Scottish Cases 49, which has been cited with approval by Wanchoo, J (afterwards C.J.) of the Supreme
Court in Shanti Prasad v. Kalinga Tubes, (1965) 1 Comp. L.J. 193 at 204 is as under :
“The essence of the matter seems to be that the conduct complained of should at the lowest, involve a visible
departure from the standards of fair dealing, on which every shareholder who entrusts his money to the companyis
entitled to rely.”
Case Law:
An attempt to force new and more risky objects upon an unwilling minority may in circumstances amount to
oppression. This was held in Re. Hindustan Co-operative Insurance Society Ltd., AIR. 1961 Cal. 443 wherein the life
insurance business of a company was acquired in 1956 by the Life Insurance Corporation of India on payment
of compensation. The directors, who had the majority voting power, refused to distribute this amount among
shareholders, rather they passed a special resolution changing the objects of the company to utilise the
compensation money for the new objects. This was held to be an “Oppression”. The court observed: “The majority
exercised their authority wrongfully, in a manner burdensome, harsh and wrongful. They attempted to force the
minority shareholders to invest their money in different kind of business against their will. The minority had
invested their money in a life insurance business with all its safeguards and statutory protections. But they were
being forced to invest where there would be no such protections or safeguards”.
A similar relief was allowed by the House of Lord in Scottish Co-operative Wholesale Society v. Mayer (1959) AC 324.
In this case, the society created a subsidiary company to enable it to enter in the rayon industry. Subsequently when
the need for the subsidiary ceased to exist, the society adopted a policy of running down its business which
depressed the value of its shares. The two petitioners who were managing directors and minority shareholders in
the company successfully pleaded “oppression”. The court ordered the society to purchase the minority shares at
ȏ ǤH.R.
Harmer Ltd., (1959) 1 WLR 62].
Minor acts of mismanagement, however, are not to be regarded as oppression. As far as possible, shareholders
should try to resolve their differences by mutual readjustment. Moreover, the courts will not allow these special
remedies to become a vexatious source of litigation. For example, in Lalita Rajya Lakshmi v. Indian Motor Co. A.I.R.
1962 Cal 127, the petitioner alleged that the Board of directors were guilty of certain acts detrimental to the
minority of the shareholders. The allegations were that the income of the company was deliberately shown less by
excessive expenditure; that passengers travelling without ticket on the company’s buses were not checked; that
petrol consumption was not properly checked; that second hand buses of the company had been disposed of at low
ǡ ϐǤ
proved to the satisfaction of the court, there would have been no oppression.
A member can complain of oppression only in his capacity as a member and not in his capacity as director or
ȏ ǤBellador Silk Ltd., (1965) 1 All ER 667].
The legal represen ϐ
a petition under Sections 397 and 398 of the Companies Act, 1956, for relief against oppression or mismanagement,
Worldwide Agencies Pvt. Ltd. and Another v. Mrs. Margaret T. Desor and Others, Com Cases Vol. 67 (1990), 807 (S.C.).
ϐ
was pending before the Civil Court. The legal heirs alleged illegal allotment of shares by respondent to themselves,
Ǥ ϐ
ǤȏRajkumar Devraj & Aur. v. ǤǤƬ(CLB) CA. No. 133 of 2006 in C.P.
No. 30 of 2006.
It should not, however, be supposed that these special remedies against oppression or mismanagement are available
ǤDz ǡ ϐ ǡ
Lesson 12 • An overview of Corporate Reorganisation 489
relief can be granted even if the application is made by a majority, who have been rendered completely ineffective
by the wrongful acts of a minority group. “Accordingly, a relief under the section was allowed to a majority group by
Mitra, J., of the Calcutta High Court in In Re. Sindhri Iron Foundry (P) Ltd. (1963) 68 CWN 118. His Lordship observed
Dz ϐ ǯ
ǡϐ ǡ
rival Boards are holding meetings, that the company’s business, property and assets have passed to the hands of
unauthorised persons who have taken wrongful possession and who claim to be the shareholders and directors
there is no reason why the court should not make appropriate order to put an end to such matters.
Referring to the argument that the majority could always call a meeting and put things in order by passing
resolutions, his Lordship said:
“The facts in this case show very clearly, that there is no chance of redress in the domestic forum of the company. If
a Board meeting was to be calleǡ ϐ ǡ
would urge that there were seven. If a meeting of the shareholders was to be convened, according to one group
ǡ ǦϐǤǤǤ
There would be complete chaos and confusion ... “(Ibid., p. 335).
“This ingenious remedy has not only permitted redressal of many abuses, but its mere availability has had a
Ǥdzȏ Ǥ ǣ ǡȋͳͻͷͲȌ͵ ͶȐǤ
It was held in the case of Ajit Singh Ahuja v. Saphire (India) (P) Ltd. ȏȋʹͲͲͻȌͳ ͵ͳ͵ȋȌȐ
ǡ ϐ ϐ ȂȋȌ ǢȋȌ
committed the act of oppression; (c) how it is oppressive; (d) whether it is in the affairs of the company; and
whether the company is party to the commission of the act of oppression.
Oppression must be a continuous process. This is suggested by the words, ‘are being conducted in a manner...’ used
in Section 397. Hence isolated acts of oppression or mismanagement will not give rise to an action under Section
397 of the Act. In Shanti Pd. Jain’s Case, the court said:... “events have to be considered not in isolation but as a part
of a consecutive story. There must be continuous acts on the part of the majority shareholders, continuing up-to-
date of petition”.
However in Tea Brokers P. Ltd. v. Hemendra Prosad Barooah (1998) 5 Comp LJ 963 (Cal.) the Division Bench of
Calcutta High Court observed that:
‘This is undoubtedly, a right and privilege which a member enjoys in his capacity as a member of the company…
such an act may be even a single act done on one particular occasion if the effect of such an act will be of a continuing
nature and the member concerned is deprived of his rights and privilege for all time to come in future’.
In Ramshankar Prasad v. Sindu Iron Foundry (P) Ltd., AIR 1966 Cal 512, it was held that a petition under Section 397,
would be maintainable even if the oppression was of a short duration and of a singular conduct if its effects persisted
ϐȏMaharashtra Power Development Corporation. Ltd. v. Dabhol Power Co. Ltd. (2003) 56 CLA
263 (Bom.)].
In Bhagirath Agarwala v. Tara Properties P. Ltd. (2003) 51 CLA 57 (Cal.), also the removal of a director and allotment
of shares were set aside as they were done at a meeting which was covered without complying with the requirements
ʹͺ ϐ Ǥ
simultaneous offer to others on pro rata basis. A single act of issue of additional shares can have a continuous effect.
Ǥ Ǥ ǤȏAshok Kumar
Oswal v. Panchsher Textile Mfg. & Trading Co. Ltd. (2002) 110 Com Cases 800 (CLB-PB)].
Past acts of oppression will not entitle a plaintiff to seek the remedy under Section 397. The purpose of this section
is not so much to take up the past as to redeem the future. A catalogue of charges of the past alleged misdeeds will
ȏThakur Prem Singh v. Thakur Hotel (Simla) Co. (P) Ltd., AIR 1963 Punj. 63; Raghunath Swarup
Mathur v. Har Swarup Mathur, (1970) 40 Com Cases 282 (All)].
490 Lesson 12 • EP-CL
And that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial
to its interests or its members or any class of members,
However, such material change shall not be a change brought about by, or in the interests of, any creditors, including
debenture holders or any class of shareholders of the company.
B. BY CENTRAL GOVERNMENT
The Central Government, if it is of the opinion that the affairs of the company are being conducted in a manner
prejudicial to public interest, it may itself apply to the Tribunal for an order (Sec 241(2).
As per Section 241(3), where in the opinion of the Central Government there exist circumstances suggesting that –
(a) any person concerned in the conduct and management of the affairs of a company is or has been in connection
therewith guilty of fraud, misfeasance, persistent negligence or default in carrying out his obligations and
functions under the law or of breach of trust;
(b) the business of a company is not or has not been conducted and managed by such person in accordance with
sound business principles or prudent commercial practices;
(c) a company is or has been conducted and managed by such person in a manner which is likely to cause, or has
caused, serious injury or damage to the interest of the trade, industry or business to which such company
pertains; or
(d) the business of a company is or has been conducted and managed by such person with intent to defraud its
creditors, members or any other person or otherwise for a fraudulent or unlawful purpose or in a manner
prejudicial to public interest,
The Central Government may initiate a case against such person and refer the same to the Tribunal with a request
ϐ
ϐ ϐ Ǥ
The person against whom a case is referred to the Tribunal under Section 241(3), shall be joined as a respondent to
the application. (Section 241(4))
As per Section 241(5), every application under Section 241(3) –
(a) shall contain a concise statement of such circumstances and materials as the Central Government may
consider necessary for the purposes of the inquiry; and
Lesson 12 • An overview of Corporate Reorganisation 491
For the purposes of this sub-section, where any share or shares are held by two or more persons jointly, they shall
be counted only as one member.
Where any members of a company are entitled to make an application under sub-section (1), any one or more of
ǡ ϐ
all of them.
POWER OF TRIBUNAL
ϐ ʹͶͶ
Proviso to section 244(1) states that the Tribunal may, on an application made to it in this behalf in Form No: NCLT-
9ǡ ϐ ȋȌ ȋȌȂ ȋͳȌ ʹͶͶ
so as to enable the members to apply under Section 241.
Power of Tribunal to issue orders [Section 242(1)]
On any application made under section 241, the Tribunal is of the opinion—
(a) that the company’s affairs have been or are being conducted in a manner prejudicial or oppressive to any
member or members or prejudicial to public interest or in a manner prejudicial to the interests of the
company; and
(b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts
would justify the making of a winding-up order on the ground that it was just and equitable that the company
should be wound up, the Tribunal may, with a view to bringing to an end the matters complained of, make
ϐǤ
(c) in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share
capital;
(d) restrictions on the transfer or allotment of the shares of the company;
(e) ǡϐ ǡǡǡ
and the managing director, any other director or manager, upon such terms and conditions as may, in the
opinion of the Tribunal, be just and equitable in the circumstances of the case;
(f) ǡϐ
than those referred to in clause (e):
ǡϐ
obtaining the consent of the party concerned;
(g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made
or done by or against the company within three months before the date of the application under this section,
which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent
preference;
(h) removal of the managing director, manager or any of the directors of the company;
(i) recovery of undue gains made by any managing director, manager or director during the period of his
appointment as such and the manner of utilisation of the recovery including transfer to Investor Education
ϐ Ǣ
(j) the manner in which the managing director or manager of the company may be appointed subsequent to an
order removing the existing managing director or manager of the company made under clause (h);
(k) appointment of such number of persons as directors, who may be required by the Tribunal to report to the
Tribunal on such matters as the Tribunal may direct;
(l) ϐǢ
(m) any other matter for which, in the opinion of the Tribunal, it is just and equitable that provision should be
made.
However, if a company contravenes the provisions of sub-section (5) of Section 242, the company shall be punishable
ϐ Ǧϐ
ϐ ϐ Ǧϐ
thousand rupees but which may extend to one lakh rupees.
CONSEQUENCE OF TERMINATION OR MODIFICATION OF AGREEMENTS (SECTION 243)
ͳǤ ʹͶʹǡϐȂ
(a) such order shall not give rise to any claims whatever against the company by any person for damages
ϐ
otherwise;
(b) no managing director or other director or manager whose agreement is so terminated or set aside
ǡϐǡ
without the leave of the Tribunal, be appointed, or act, as the managing director or other director or
manager of the company.
In the matter of Aruna Oswal (Appellant) vs. Pankaj Oswal & Ors. (Respondents)
(Supreme Court) (July 06, 2020)
Dispute of Inheritance of Shares is a civil dispute, it cannot be decided under section 241/242 of the
Companies Act, 2013
Fact of the case:
The brief facts of the case are that Late Mr. Abhey Kumar Oswal, during his lifetime, held as many as 5,35,3,960
ȀǤǤǡ Ǥ ʹͻǤ͵ǤʹͲͳǤǤϐ
nomination according to section 72 of the Companies Act, 2013 in favour of Mrs. Aruna Oswal, his wife. Two
witnesses duly attested the nomination in the prescribed manner. The name of Mrs. Aruna Oswal, the appellant,
was registered as a holder on 16.4.2016 as against the shares held by her deceased husband.
ȋǤͳȌǡϐ
to 1/4th of the estate of his father including the deceased’s shareholdings. The High Court passed an interim
order to maintain status quo concerning shares and other immoveable property.
While the suit was pending, respondent no. 1 also moved the NCLT, Chandigarh, alleging ‘oppression and mis-
management’ under Section 241/242 of the Companies Act, 2013 in the affairs of respondent no. 2 company.
Ǥ ϐǡ
without deciding the question of maintainability.
494 Lesson 12 • EP-CL
This was challenged before NCLAT, which in turn directed the NCLT to decide the question of maintainability of
the petition. The NCLT thereafter dismissed the challenge to maintainability and held that the respondent no. 1,
being a legal heir, was entitled to one-fourth of the property/shares. Therefore, the matter eventually reached
the Supreme Court of India.
Judgment
Supreme Court observed that the basis of the petition is the claim by way of inheritance of 1/4th shareholding
ͳͲΨǤǡ
ʹͶͳȀʹͶʹ ǡʹͲͳ͵Ǥǡϐ ʹͶͳʹͶʹ
ǡǤͳϐ
to the extent of the shares he is claiming; more so, in view of the nomination made as per the provisions contained
in Section 71 of the Companies Act, 2013. In order to maintain the proceedings, the respondent should have
waited for the decision of the right title and interest, in the civil suit concerning shares in question.The orders
passed by the NCLT as well as NCLAT are set aside, and the appeals are allowed.
In the matter of Mrs. Arti Meenakshi Muthiah (Appellant) vs. MCTM Global Investments Pvt. Ltd. & Ors.
(Respondents) (NCLAT) ( June 11, 2020)
Merely adding an additional signatory to a bank account cannot be claimed to be an act of Oppression
Effects of Order
Order shall be binding: Any order passed by the Tribunal shall be binding on the company and all its members,
ϐ
the company. [Section 245(6)]
Punishment for non-compliance: Any company which fails to comply with an order passed by the Tribunal under
ϐ ϐ
Ǧϐϐ
ϐ Ǧϐ
but which may extend to one lakh rupees. [Section 245(7)]
Frivolous or vexatious Application [Section 245(8)]
ϐ ǡ ǡ
recorded in writing, reject the application and make an order that the applicant shall pay to the opposite party such
ǡ ǡ ϐǤ
Exemption to Banking Company [Section 245(9)]
This Section is not applicable to Banking Company. Nothing contained in under section 245 of the companies Act,
2013 shall apply to a banking company.
APPLICATION OF CERTAIN PROVISIONS TO PROCEEDINGS UNDER SECTION 241 OR SECTION 245
(SECTION 246)
According to Section 246, the provisions of sections 337 to 341 (both inclusive) shall apply mutatis mutandis, in
relation to an application made to the Tribunal under section 241 or section 245.
• ϐ ȋ ͵͵Ȍǣ
• Liability for proper account not kept (Section 338):
• Liability for fraudulent conduct of business (Section 339):
• Power of Tribunal to assess damages against delinquent directors, etc. (Section 340):
• Liability under Sections 339 and 340 to extend to partners or directors in Firms or Companies (Section 341).
498 Lesson 12 • EP-CL
WINDING UP OF COMPANIES
ϐ
ϐ Ǥ
In words of Professor Gower, “Winding up of a company is the process whereby its life is ended and its Property is
ϔƬ Ǥǡ
ǡ ǡϔ
in accordance with their rights.”
According to Halsburry’s Laws of England, “Winding up is a proceeding by means of which the dissolution of a company
is brought about & in the course of which its assets are collected and realised; and applied in payment of its debts; and
ϔǡ
contributed to the company in accordance with Articles of the Company.” Winding up is a legal process.
A contributory shall be entitled to present a petition for the winding up of a company, notwithstanding that he may
be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets
left for distribution among the shareholders after the satisfaction of its liabilities, and shares in respect of which he
is a contributory or some of them were either originally allotted to him or have been held by him, and registered in
his name, for at least six months during the eighteen months immediately before the commencement of the winding
Ǥȏ ʹʹȋʹȌȐ
The Registrar shall be entitled to present a petition for winding up under section 271, except on the grounds
ϐ ȋȌ Ǥ
the presentation of a petition:
The Central Government shall not accord its sanction unless the company has been given a reasonable opportunity
Ǥȏ ʹʹȋ͵ȌȐ
A petition presented by the company for winding up before the Tribunal shall be admitted only if accompanied by
Ǥȏ ʹʹȋͶȌȐ
ϐǡ
prejudice to any other provisions, submit his views to the Tribunal within sixty days of receipt of such petition.
ȏ ʹʹȋͶȌȐ
Powers of Tribunal
Section 273(1) of the Companies Act, 2013 provides the Tribunal may, on receipt of a petition for winding up under
section 272 pass any of the following orders, namely:—
(a) dismiss it, with or without costs;
ȋȌ ϐǢ
(c) appoint a provisional liquidator of the company till the making of a winding up order;
(d) make an order for the winding up of the company with or without costs; or
ȋȌ ϐǣ
an order under this sub-section shall be made within ninety days from the date of presentation of the petition:
Before appointing a provisional liquidator under clause (c), the Tribunal shall give notice to the company and afford
a reasonable opportunity to it to make its representations, if any, unless for special reasons to be recorded in writing,
ϐ ǣ
500 Lesson 12 • EP-CL
The Tribunal shall not refuse to make a winding up order on the ground only that the assets of the company have
been mortgaged for an amount equal to or in excess of those assets, or that the company has no assets.
Section 273(2) of the Companies Act, 2013 provides where a petition is presented on the ground that it is just and
equitable that the company should be wound up, the Tribunal may refuse to make an order of winding up, if it is of
the opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking
to have the company wound up instead of pursuing the other remedy.
Directions for Filing Statement of Affairs
ʹͶϐ
ǡǡϐ ǡ
ϐ
such form and in such manner as may be prescribed.
Provided that the Tribunal may allow a further period of thirty days in a situation of contingency or special
circumstances:
Provided further that the Tribunal may direct the petitioner to deposit such security for costs as it may consider
reasonable as a precondition to issue directions to the company.
ǡ ϐǡ
ϐ Ǧ ǡǤ
ϐ ǡ
Tribunal under clause (d) of sub-section (1) of section 273, shall, within a period of thirty days of such order, submit,
at the cost of the company, the books of account of the company completed and audited up to the date of the order,
to such liquidator and in the manner specified by the Tribunal.
ϐ ǡ ϐ
company who is in default shall be punishable with imprisonment for a term which may extend to six months or
ϐ Ǧϐ ϐǡ
both.
ϐ ǡǡ
Liquidator or any person authorised by the Tribunal.
Company Liquidators
Section 275 (1) and (2) of the Companies Act, 2013 provides that for the purposes of winding up of a company by
ǡǡϐ
or Company Liquidator. Provisional Liquidator or the Company Liquidator shall be from amongst the insolvency
professionals registered under the Insolvency and Bankruptcy Code, 2016.
VOLUNTARY WINDING UP
Chapter V of the Insolvency and Bankruptcy Code of India 2016 deals with the Voluntary Liquidation of Corporate
Persons.
Section 59 of IBC, 2016 provides that:
(1) A corporate person who intends to liquidate itself voluntarily and has not committed any default may initiate
voluntary liquidation proceedings under the provisions of this Chapter.
(2) The voluntary liquidation of a corporate person under sub-section (1) shall meet such conditions and
ϐǤ
(3) Without prejudice to sub-section (2), voluntary liquidation proceedings of a corporate person registered as a
company shall meet the following conditions, namely:—
(a) a declaration from majority o ϐϐȄ
(i) they have made a full inquiry into the affairs of the company and they have formed an opinion
Lesson 12 • An overview of Corporate Reorganisation 501
that either the company has no debt or that it will be able to pay its debts in full from the
proceeds of assets to be sold in the voluntary liquidation; and
(ii) the company is not being liquidated to defraud any person;
(b) the declaration under sub-clause (a) shall be accompanied with the following documents, namely:—
ȋȌ ϐ
two years or for the period since its incorporation, whichever is later;
(ii) a report of the valuation of the assets of the company, if any prepared by a registered valuer;
(c) within four weeks of a declaration under sub-clause (a), there shall be—
(i) a special resolution of the members of the company in a general meeting requiring the company
to be liquidated voluntarily and appointing an insolvency professional to act as the liquidator;
or
(ii) a resolution of the members of the company in a general meeting requiring the company to be
ǡǡϐ
or on the occurrence of any event in respect of which the articles provide that the company shall
be dissolved, as the case may be and appointing an insolvency professional to act as the
liquidator: Provided that the company owes any debt to any person, creditors representing two
thirds in value of the debt of the company shall approve the resolution passed under sub-clause
(c) within seven days of such resolution.
(4) The company shall notify the Registrar of Companies and the Board about the resolution under sub- section
(3) to liquidate the company within seven days of such resolution or the subsequent approval by the creditors,
as the case may be.
(5) Subject to approval of the creditors under sub-section (3), the voluntary liquidation proceedings in respect
of a company shall be deemed to have commenced from the date of passing of the resolution under sub-
clause (c) of sub-section (3).
(6) The provisions of sections 35 to 53 of Chapter III and Chapter VII shall apply to voluntary liquidation
ϐ Ǥ
(7) Where the affairs of the corporate person have been completely wound up, and its assets completely
liquidated, the liquidator shall make an application to the Adjudicating Authority for the dissolution of such
corporate person.
ȋͺȌ ϐǦ ȋȌǡ
that the corporate debtor shall be dissolved from the date of that order and the corporate debtor shall be
dissolved accordingly.
(9) A copy of an order under sub-section (8) shall within fourteen days from the date of such order, be forwarded
to the authority with which the corporate person is registered.
Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017
In exercise of the powers conferred by sections 59, 196 and 208 read with section 240 of the Insolvency and
Bankruptcy Code, 2016 (31 of 2016), the Insolvency and Bankruptcy Board of India issued Insolvency and
Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017
Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 shall apply to the
voluntary liquidation of corporate persons under Chapter V of Part II of the Insolvency and Bankruptcy Code, 2016.
Initiation of Liquidation - Under Regulation 3 of IBBI (Voluntary Liquidation Process) Regulations, 2017
(1) Without prejudice to section 59(2), liquidation proceedings of a corporate person shall meet the
followingconditions, namely: –
(a) a declaration from majority of
502 Lesson 12 • EP-CL
(2) The corporate person shall notify the Registrar and the Board about the resolution under sub-regulation (1) to
liquidate the corporate person within seven days of such resolution or the subsequent approval by the creditors, as
the case may be.
(3) Subject to approval of the creditors under sub-regulation (1), the liquidation proceedings in respect of a
corporate person shall be deemed to have commenced from the date of passing of the resolution under sub- clause
(c) of sub-regulation (1):
Explanation: For the purposes of sub-regulations (1) to (3), corporate person means a corporate person other than
a company.
(4) The declaration under sub-regulation (1)(a) or under section 59(3)(a) shall list each debt of the corporate
person as on that date and state that the corporate person will be able to pay all its debts in full from the proceeds
of assets to be sold in the liquidation.
Effect of liquidation
(1) The corporate person shall from the liquidation commencement date cease to carry on its business except as
ϐ Ǥ
(2) Notwithstanding the provisions of sub-section (1), the corporate person shall continue to exist until it is
dissolved under section 59(8).
Currently, the proceedings pertaining to voluntary winding up and winding up on the grounds of inability to pay
debts are governed by the Insolvency and Bankruptcy Code 2016, which provides for time-bound speedy dissolution
of a company.
However, winding-up proceedings on the ground other than inability to pay debts continued to be governed by the
ȋȌǡͳͻͷͻ ϐͲ
ϐ ǡʹͲͳ͵ ǡʹͲͳǤ
An important feature of these rules is the summary procedure for liquidation introduced through Part V. An
important factor for such summary winding-up is that the Central Government will provide required approvals to
such companies for the normal winding-up process which is otherwise undertaken through the NCLT, thereby
reducing the burden on NCLT and greatly shortening the overall winding-up timelines.
III Winding up by tribunal (other than summary winding up) debts and claims Rule 100-125
against company
III Attendance and appearance of creditors and contributories Rule 126-127
III Payment of unclaimed dividends or undistributed assets into the company Rule 179-182
liquidation dividend and undistributed assets account in a winding up
appointed by the audit committee or in its absence by the Board of Directors of that company.
The valuer appointed under sub-section (1) shall,—
(a) make an impartial, true and fair valuation of any assets which may be required to be valued;
(b) exercise due diligence while performing the functions as valuer; make the valuation in accordance
with such rules asprescribed under Rule 8 of the Companies(Registered Valuers and Valuation) Rules,
2017; and
(c) not undertake valuation of any assets in which he has a direct or indirect interest or becomes so
interested at any time during a period of three years prior to his appointment as valuer or three years
after the valuation of assets was conducted by him.
Continuous Default
ͶͲ͵ȋͳȌ ǡϐǡ
registering or recording of the document, fact or information, it may, without prejudice to any other legal action or
ǡʹͲͳ͵ǡǡϐǡ ǡ ǡ
of a higher additional fee, as may be prescribed. ȋ ǡͶͶȌȋϔ
by Central Government).
Punishment on Failure
Further, sub- section (2) o ͶͲ͵ ǡϐǡ
ǡ ͶͲ͵ȋͳȌ ϐ
508 Lesson 12 • EP-CL
In exercise of the powers conferred by section 405 of the Companies Act, 2013, the Central Government hereby vide
ϐ ǤǤǤ͵ͺȋȌǡʹʹ ǡʹͲͳͻϐ ϐȋ
information about payment to micro and small enterprise suppliers) Order, 2019.
Under this order:
ȋȌ ϐϐMSME Form I regarding details of all outstanding dues
ϐ ȋʹʹ ǡʹͲͳͻȌ
within the prescribed period.
ȋȌ ϐ ϐǦMSME Form I by 31st October for the period
from April to September and by 30th April for the period from October to March.
Lesson 12 • An overview of Corporate Reorganisation 509
LESSON ROUND-UP
GLOSSARY
Merger A ‘merger’ is a combination of two or more entities into one; the desired effect being
not just the accumulation of assets and liabilities of the distinct entities, but
organization of such entity into one business. The possible objectives of mergers are
manifold - economies of scale, acquisition of technologies, access to sectors /
markets etc. Generally, in a merger, the merging entities would cease to be in
existence and would merge into a single surviving entity.
Tribunal Tribunal refers to National Company Law Tribunal
Banking Company “banking company” means any company which transacts the business of banking in
India. Explanation.—Any company which is engaged in the manufacture of goods or
carries on any trade and which accepts deposits of money from the public merely for
ϐ
deemed to transact the business of banking. (Sec 5(c) of banking Regulation Act
1949)
TEST YOURSELF
(These are meant for recapitulation only. Answers to these questions are not required to be submitted for evaluation).
1. Describe the provisions relating to cross border mergers in Companies Act, 2013.
2. What are the requirements relating to notice required under Section 230 of the Companies Act, 2013?
3. Describe the powers of Central Government to provide for amalgamation of companies in public interest.
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
An Introduction to MCA 21
Lesson 13 ϐ
Key Concepts One Learning Objectives
Should Know
To understand
• Ǧ
• MCA website and its features
• Ǧʹͳ
• Incorporation of Companies
•
• Ǧϐ Ǧ
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• Ǧ
Lesson Outline
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512 Lesson 13 • EP-CL
Regulatory Framework
The Companies Act, 2013
Section
Section 7 Incorporation of Companies
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Lesson 13 • ʹͳϐ 513
Ǧʹͳ Ǧ ϔ ǯ ǦǦͷ
ǯ Version 3.0 (V3.0) comprising of revamped website, new
Ǧ Ǥ ϔ ǡ
ǯ namely, e. Book and e. Consultation was launched during a
virtual event on May 24, 2021.
ǡ
ϐ The MCA V3.0 is going to be implemented in two phases.
ȋȌǤ Ǧʹͳ ϔ
2021 onwards. The entire project is proposed to be launched
Ǥ within this Financial Year and will be data analytics and
ϐ machine learning driven. The MCA21 V3.0 in its entirety
ǡ will not only improve the existing services and modules,
Ǥ Ǧ ǡ
compliance management system, advanced helpdesk,
Ǧ ǡ ǡǡǦ
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Lesson 13 • ʹͳϐ 515
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ϐ ϐ ǡǤȋRule 9 of the Companies (Incorporation) Rules, 2014)
522 Lesson 13 • EP-CL
www.mca.gov.inǡ
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Lesson 13 • ʹͳϐ 523
ȋ Ȍ ͳͷǡʹͲͳͻ
ȋȌ ȗǤ
* Amended by The Companies (Incorporation) Fourth Amendment Rules, 2021. dated 07.06.2021
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ȋ ʹǤ ȌǤ
528 Lesson 13 • EP-CL
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Lesson 13 • ʹͳϐ ͷʹͻ
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Lesson 13 • ʹͳϐ 531
ȋȌ ǦϐϐǤϐǦϐ
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532 Lesson 13 • EP-CL
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Lesson 13 • ʹͳϐ 533
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ǡ Ǥ
ǡ ǣ
• ȋǤǤǡ ȌǢ
ǡDzǯǡDzdz Dzdz Ǥ
• ȋǤǤȌǢ
• ȋǤǤ ȌǤ
ǦǤǡ
Ǧ Ǥ
ǡ
Ǥǡ ǡ
Ǥ
Ǥ
ǡ Ǧ
ǦǤ ǡ
Ǥ ǡ ǡ
ǦǤ ǡǦ ǡǡ Ǧ
Ǥ ǡ ǡ ǡ
Ǥ Ǥ
ǡ ϐ
Ǥ
ȋȌ
ϐ Ǥ ǡ
Ǥ ǡϐ
ϐ Ǥ
ǦͳǦǯ
ϐ
Ǧ͵Ǧ
the instance document
ǡ ȋǤȌ ϐ ϐ ȋǤȌ
ǡ ϐ Ǥ
Ǧ ǦͶȋȌ
ǡ ϐ Ǥ
ͳǤ
͵ͺ Ǧ ͳȌ ȗ
Companies Ǧ business
ǦǦ ȋ Ȍǡ Ϊ ʹȌ ȗ
͵ͷ ʹͲͳͶ form for
ϐ Ȁ Ȁ ȋ
Ȁ Ǥ
ȋ Ȍǡ Ȁ Ȁ
Ȁ Ȁ
State
Insurance Ȍ
Corporation Ǥ ͵Ȍ ȗ
ȋ Ȍ
ǡ Account
ǯ ͶȌ ȗ
Account
ͷȌ ȗ
ȋ Ȍ
and profession
Lesson 13 • ʹͳϐ ͷ͵ͻ
ǡ
͵Ȁ
Ǧͳ ͵ȋʹȌ ǡ ǣ
ȋ ϐǡ Ǧ Ǧͳ ͳǤ Ȁ
ȌǡʹͲͳͶ ϐ
ǡ ǡǢ
ǡ Ϊ ʹǤ
ȀǢ
formed under
͵Ǥ ϐ Ȁ
Ǣ
ͶǤ
two or more Ǣ
ǡ ͷǤ Ǣ
Ǥ ϐ ȀȀ
under ǡ
Companies Ǣ
ǡʹͲͳ͵
Ǥ
Part I
Ǥ ǡ
ͳͺͻͻǢ
ͺǤ
ϐǢ
ͻǤ ϐ
Ǯ ͺ ǯ
Ǯ ǯǢ
ͳͲǤ
Ǣ
ͳͳǤ Ǧ
Ǣ
ͳʹǤ ϐ
ȋȌ
Ǯ
ǯȀǮ ǯǢ
ͷͶͲ Lesson 13 • EP-CL
ͶͷͶȋͷȌȀ ͳȌ ϐ
ADJ ͶȋͳȌ Ͳ
Companies ϐ Ǣ
ȋ ϐ ʹȌ
ȌǡʹͲͳͶ order of
ϐ
ǡ
Ǣ
͵Ȍ
ϐǢ
ͶȌ
ȋȌǤ
ͳȀ Ȃ ͳȌ
Ǧͳ ͶͲͶͳ
Companies ȂǢ
ȋ Ȍǡ ϐ ʹȌ Ȃ
ʹͲͳͶ Ǧ Ǧͳ ϐ
certain mentioned Ǯϐ ǯǢ
purposes under
͵Ȍ -
ǡʹͲͳ͵
ϐǮ
ǯǢ
ͶȌ -
ϐǮ
ǯǢ
Lesson 13 • ʹͳϐ ͷͶͷ
• ϐ
ommission or
• ϐ
ͳȌ
ϐ
ϐ
ϐ ȋ
ȌǢ
ʹȌ
Ǥ
ǡͺ ͳȌ ȋȌ
Ǧͳ ͻ ͵ͺͶ ϐ ϐ
͵
Companies creation or cases;
ȋ ϐ ʹȌ ȋȌ
ȌǡʹͲͳͶ ϐȋ ǥǥǥǤ
Ȍ ǥǥǥǥǥ
ϐ Ǥ
period to concerned
Ǥ
Ǣ
͵Ȍ
Ǥ
Ǣ
ͶȌ ǡǤ
ͳȋ͵Ȍǡǡ ͺ ͳȌ ϐ
Ǧͻ ͻ ϐ
͵ͺͶ͵
Companies ϐ creation or Ǣ
ȋ ϐ ʹȌ
ȌǡʹͲͳͶ
ϐ ϐ
ϐ
respect of creation or cases;
ϐ ͵Ȍ
ϐ
Ǧ ϐ
ϐ Ǣ
ϐ ͶȌ
ϐ ȋȌǤ
Ǧͻ
concerned RoC in
case of Indian
ǡ
Ǥ
Lesson 13 • ʹͳϐ ͷͶ
ǦǤǤȋȌ
ǤǤ
ȋȋȌ
ȋ ǤȌ
ǡ
Ǧ
ǤǤȋȌǤǤ
ȋϐ ȋȌȌ
Ǥ
ʹͳ ͵Ͳ ͳȌ
Ǧ͵ ǡʹͲͳͶ ϐ
address;
Ǥ ʹȌ
Ǣ
͵Ȍ
Ǣ
ͶȌ
address;
ͷȌ
address;
Ȍ ǡǤ
ͶͲȀ ͵Ǧ ǣ
ǦͶ ͵ǡʹ͵ʹ͵ ϐ incorporated ͳȌ
ǡʹͲͳͶ Board of directors in support
Ǥ commencement Ǣ
ʹȌ ϐ ʹ
ȋȌ
ǡʹͲͳͻ number of members as on
ϐ
ǦͶ ȋ
ʹͲͲȌǢ
͵Ȍ ϐ
ǣǦ
ȋȌ
its
ǡʹͲͳͶǤ
incorporation or
ͶȌ Ǣ
ȋȌ
Ǯ
ǯǢ
ͷȌ ϐ
Director under
ͷȋ͵Ȍ
ǡ ǡͳͻͷ
ʹͲͳͶ ȋ ȌǤ
550 Lesson 13 • EP-CL
ʹ͵Ǧ
ȋȌ
ʹ
ǡ
commencement of
ȋȌ
ǡʹͲͳͻǡ
͵
incorporation or
a period of
ͻ
date of
commencement of
ȋȌ
ǡʹͲͳͻǡ
ʹ͵Ǧ
ϐ ǦͶ
Ǥ
ȋͶȌ ͳȌ ϐ
Ǧͷ Ͳ
ȋ Ȍǡ
ʹͲͳͶ an intimation to Ǣ
Ǥ
Ǥ Ǧͷ ʹȌ
ϐ Ǣ
͵Ȍ ϐ
Accountant in practice for
Ȃ ϐ
increase in its
ϐ Ǣ
or increase in
ͶȌ
ȋȌǤ
Ǥ
Lesson 13 • ʹͳϐ 551
͵ȋͳȌȀ ͵Ͳ ͳȌ
ǦͶ ͶȋͶȌǡȋͷȌǡȋȌ of notice of Ǧ͵
Companies required to nominate Ǥ
ȋ Ȍǡ ǡ Ȁ ȋȌǢ
ʹͲͳͶ Ȁ Ȁ
ʹȌ ϐ of
prior written cessation of
Ȁ
ǡ Ǥ
ǤȋȌǢ
͵Ȍ
ǯ ȀǤ
ȋȌǢ
Ǥ ͶȌ
ȀǤ
ϐ ȋȌǢ
ͷȌ
Ǣ
Ȍ
ǡ
nominee in case intimation
ǡ Ǣ
cessation of member Ȍ
proof of cessation of member
Ǥ in case of intimation of
cessation of member;
ͺȌ
ȋȌǤ
ͶͷͷȋͳȌ ͵Ͳ ͳǤ ϐ
Ǧͳ Ȁ͵
Ǣ
ȋ Ȍǡ status of a Dormant ʹǤ ϐ
ʹͲͳͶ
Ǣ
͵Ǥ ǯ ϐ Ǣ
Ͷͷͷ ͶǤ
ǡʹͲͳ͵ ϐ
ȋȌ
Ǣ
ͷǤ
ϐ ȋȌ
Ǣ
Ǥ ϐ
ϐ
Ǣ
Ǥ
Ǣ
ͺǤ ϐ
Ǣ
ͻǤ
ȋȌǤ
Lesson 13 • ʹͳϐ 555
ͶͷͷȋͷȌȀ ͵Ͳ ͳǤ ϐ
Ǧ͵ ϐDz
Companies dz ϐ ϐ
ȋ Ȍǡ ǡǦǡ ǤȋȌǢ
ʹͲͳͶ ʹǤ
ϐ ϐ
ǤȋȌǢ
͵Ǥ be
ȋȌǤ
ͶͷͷȋͷȌȀ - ͳǤ ϐ
MSC-4 ͺ ϐ
Companies ϐ
ȋ Ȍǡ Ǣ
ʹͲͳͶ
ʹǤ
ȋȌǤ
ͻȌ Ǧ
ȋȌ
ǡ
one or more State
Ǣ
ȋȌ
ǡ
ȋȌǡ
ǡ
Ǥ Ǧ͵
ǡ
ǡ
ǡ
ǡ
Ǣ
(Inserted by the Companies
(Removal of Names of
Companies from the
Register of Companies)
Amendment Rules, 2020,
dated 29th June 2020).
ͳʹȋʹȌƬͳʹ ͵Ͳ
Ǧʹʹ ȋͶȌȀʹͷƬʹ of ǣ
Ȁ ͳǤ ϐ
ȋ Ȍǡ ϐ ȋ Ȁ
ʹͲͳͶ ϐ Ȁ Ǥ
Ǧ Ǧʹʹ ϐ ȌǢ
ʹǤ
ȋ
date of its ǡ
ǡ Ǥ
Ǥ
ȌǢ
address of ͵Ǥ
Ǥ
ϐ
ϐ
incorporation forms ϐ
ΪǤ
Lesson 13 • ʹͳϐ ͷͷ
ͶȋͳȌȀ ͳȌ ϐ
Ǧ ͳͷ
ȋ Ȁ
ƬȌ members or increase or
Ǣ
ǡʹͲͳͶ ǡ
ʹȌ
Ȁ
due to order of Ǣ
ǡ
͵Ȍ
ϐ
͵Ͳ Ǣ
Ǥ ͶȌ ϐ
ϐ
Ǣ
Ǥ
ͷȌ
or increase in number of
members;
Ȍ
Ǣ
Ȍ
ȋ Ȍ
Ǣ
ͺȌ
ȋȌǤ
ȋͳȌȋ Ȍǡͳͺ ͵Ͳ ͳȌ
Ǧͳʹ ƬͳͲȋʹȌȀͳ ϐ ǡ ǡ
of Companies Ǧ Ǧͳʹ Ȁ Ǥ Ǧʹ
ȋ Ȍ
ͺǡͳͷƬͳͺ Ȁ
Companies Ȁ
ȀȀ Ǣ
ȋ
ϐ Ǥ ʹȌ
ȌǡʹͲͳͶ
Ȁ
Ȁ
ȀȀ Ǣ
560 Lesson 13 • EP-CL
•
ȋ
a person of unsound
Ȍ ȋ
Ȍ
ϐ͵Ǥ
ͷȌ ϐ ǣ
•
͵ ȋ
Ȍ
ϐ͵Ǥ
Ȍ
Ȁ
ǡ
Ȁ
ȋǡ
ǡ Ȍ Ǥ
ǡ
Ǥ
ȋȌǤ
ϐ
ϐ
Ǧ
͵ͳ
͵Ͳ
Lesson 13 • ʹͳϐ ͷͻ
ǣ
Ǥ
Ǣ
Ǥ
Ǥ
ͳͶͺȋȌȀ ͳǤ
CRA-4 ȋȌ
ȋ date of receipt ǯ
Ȍ of cost audit
ǡʹͲͳͶ ͳͺͲ report ϐ
ϐ
Ǧ͵Ǥ ʹǤ ȋȌǡǤ
cost audit report
ϐ
ͳͳ ͳǣ ǣ ͳȌ ǯ ϐ Ȃ
Ǧ͵ on or before Ǯ
ȋ ͵Ͳ ǯ Ǯ
ȌǡʹͲͳͶ ȋ ǡ
ȌǡʹͲͳͶ
ǡ ǯ
͵Ͳ
Ǣ
ǡǡ ǣ
ʹȌ Ȃ
ϐ ͻͲ
ǡ ͵ͳ ǡ
Ǧ͵ ʹͲͳͻǤ
Ǣ
information ͵Ȍ
Ȃ
͵ͳ
Ǣ
Ǥ ͶȌ Ǧ
ǡ
ϐ
Ǧ͵ Ȃ
ϐ
Ǥ
of transaction not
considered as deposit
ͷͲ Lesson 13 • EP-CL
Ȁ
entities are required
ϐ
ǦǦͳ
Ǥ
ͳ͵ͻͳͶͲ Ȁ ͳͷ
Ǧͳ ȀͶȋʹȌ reappointment of an ǣ
ȋ ͳȌ
ȌǡʹͲͳͶ ǡ auditor is Ǣ
Ȁ
ʹȌ
ϐ ǦǤ Ȁ
Ȁ
Ǯ
ǯǮǯǢ
͵Ȍ
Ǯ
ǯ
ǣ
ͶȌ
Ǣ
ͷȌ
Ƭ Ǣ
Ȍ ǡǤ
ͳͶͲȋͳȌ ͵Ͳ ͳȌ
Ǧʹ ǡʹͲͳ͵ Ǣ
ȋͳȌ
Ȁ ʹȌ ǡ
ȋ
ȌǡʹͲͳͶ Board
ϐ
ϐ Ǥ
ͳͶͲȋʹȌ Ȁ ͵Ͳ ͳȌ Ǣ
Ǧ͵ ͺ
ȋ ʹȌ ǡǤ
ȌǡʹͲͳͶ
͵ͻȋͶȌ ͳȌ ǡ
Ǧ͵ ͶʹȋͻȌȀͳʹ
ͳͶ Ǣ
ȋ ǡ Securities ʹȌ ǯ
ǡϐ
ȌǡʹͲͳͶ
Ǣ
Ǧ͵Ǥ ͵Ȍ
Ǣ
ͷʹ Lesson 13 • EP-CL
ͺȋȌȀ - ͳȌ
Ǧͻ ͳȋ͵Ȍ ϐ Ǣ
ȋ ǡ
ʹȌ
ƬȌ ǡ
Ǣ
ǡʹͲͳͶ
͵Ȍ ǯǢ
ͶȌ ϐͳȋ͵ȌǢ
Securities and
ǡ ͷȌ ǡ
it was passed;
Ǥ Ȍ ȋȌǡǤ
ͺȋͳͲȌȀ ǡ
Ǧͳͳ ͳȋͳ͵Ȍ ǣ
ȋ Ǧ ǡϐ ͳȌ
ǡ ϐ
Ȍǡ Ǣ
ʹͲͳͶ ʹȌ
Securities and Ǧ Ǣ
Ǥ
͵Ȍ ϐ
India a return in
Ǧ
Ǥ
Ǧ
ϐͺȋȌǢ
ͶȌ ϐ
Ǧ
Ǣ
ͷȌ Ǣ
Ȍ ϐ
Ǧ Ǧ
ȋͳͶȌǢ
ȋȌǤ
ͻͶȋͳȌǡͳͳȋͳȌ ͵Ͳ ͳȌ ϐ
ǦͳͶ ȀʹͶ ȋȌ
Companies ϐ
ȋƬ concerned RoC ͳͲʹȋ
ǦȌ Ǥ
Ǥ
ǡʹͲͳͶ ͵ȌǢ
ϐ Ͳ
ʹȌ
ȋ
Ȁ ȌǢ
Ȁ
͵Ȍ
Ǥ ȋ
Ȁ ȌǢ
Ȁ
Ǥ
ͷͶ Lesson 13 • EP-CL
ͳʹͺȀ ͳȌ
Ǧͷ ʹ
ȋ Ȍǡ
ʹͲͳͶ ǣ
•
Ǣ
ʹȌ
matters in respect
receipt and Ǥ
Ǣ
•
Ǣ
ͷ Lesson 13 • EP-CL
•
Ǣ
•
ǡ
ǡ
ǡ
ǡ
Ǥ
ϐ
ǡ
ǡǡϐ
ǦͷǤ
ͳͻƬ ͳȌ
Ǧʹ ͻͲ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤ
ʹͲͳ͵ Ͷ
Ȁ ϐͶȋȌǢ
Companies appointment of Ǥ
ʹȌ ϐ
ȋ
Remuneration of
Ȍ
ȋȌǢ
ǡʹͲͳͶ
͵Ȍ ϐ
ϐ
and Remuneration Committee
Ǥ
ǡʹͲͳ͵Ǥ ȋȌǢ
ͶȌ ϐ
ǯ
ͳͲʹ
ǡ ʹͲͳ͵
ȋȌǢ
ͷȌ ϐ
ͳͶ ȋʹȌ
ǡ ʹͲͳ͵
ȋȌǢ
ͳʹͻǡͳ͵Ȁ ϐ ͳȌ ϐ
Ǧ ͳʹȋʹȌ ϐ are not adopted
4XBRL ȋ Ȍ ϐ Ǧ ͳ͵Ͷȋ ǯ
ǡʹͲͳͶ ǡ ǡ ǯ
ȋ documents under Ȍ Ȃ
of documents and ͳ͵ ϐ Ǣ
͵Ͳ
ʹȌ
ǦǦͶǣ
ϐ
ȌǡʹͲͳͷ
ȋǦ
ϐϐ
ǡ Ǯǯ
ϐ
statement and ϐ
ȌǢ
statements are ͵Ȍ
ǡ ϐ ͳʹͻǦ Ǧͳ
͵Ͳ ȋǦ
Ǥ
Ǥ ȌǢ
ͶȌ
Ǣ
ϐ͵Ͳ ȋ ȌȋǦ
ϐ
Ǥ
Ǯ Ǧ
ϐ ǯȌǢ
ϐ
Ȁ ͷȌ
ͳ͵Ͳ
ͳ͵ͳα͵Ͳ Ǥ ȋǦ
order of ȌǢ
competent Ȍ
Ǥ ϐ
ȋǦ
ϐ
ȌǢ
Ȍ
ͳͶ͵
ȋǦ
ͳͶ͵ȌǢ
ͷͺͶ Lesson 13 • EP-CL
ͳʹͻȋ͵Ȍǡͳ͵ ϐ ͳȌ
ǦͶ ȀͳʹȋͳȌ ϐϐ statement are
ȋ Ȍ state- ments and not adopted in ͳ͵Ͷȋ ǯǡ
ǡʹͲͳͶ ǡ ǯ
ǡ Ȍ Ȃ
ǦǦͶ Ǣ
ϐ
ʹȌ
statement
ͳʹͻ
ͳ͵ȋ͵Ͳ ȋ
Ǧͳ
Ȍ Ȍϐ
͵Ͳ
ȋ Ȍ ǡ
αͳͺͲ Ǥ ʹͲͳͶǢ
͵Ȍ
Ǥ not entered
ȋ ȋ ȌǢ
•
ȌǤ
ǡ Ǧ ϐ
ϐϐ ϐǢ
ͶȌ
α
Ǧ͵Ͳ Ǧ
Ǧ
Ǥ Ǣ
ͳʹͻǡͳ͵ ȋ Ȍ ͳȌ ϐ
ǦͶ ǡʹͲͳ͵ ϐ
ȀǦȋͳȌ or more subsidiaries statements ͳ͵Ͷ ȋ
ͳʹ is required to prepare ǯ ǡ ǯ
ȋ Ȍ ȋ Ȍ ȌǢ
ǡʹͲͳͶ ϐ
ʹȌ Ȁ
unadopted
Ȁ
Ǥ
ͳʹͻ Ǧ
ϐ
ǦͳǢ
ϐ
͵Ȍ
ϐ ͳͶ͵
ǡ ͵Ͳ ȋ
ϐ ȋ
͵Ͳ
ͳͶ͵ȌǢ
Ǥ
ͶȌ ȋȌǢ
ȌǤ
ͷȌ
ϐ ȋ
statements are
588 Lesson 13 • EP-CL
Ǧ
• ϐǡ ǡ ǡ
ǡ
ǡʹͲͳ͵ Ǥ ǡǦ Ǧ
ͳϐǦ ΪǤ
Ǧ
Incorporation
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation.)
ͳǤ Ǧ ǦʹͳǤ
•
• ǡʹͲͳ͵
Lesson Outline
• Distinguishing features of Company Law in various countries
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
594 Lesson 14 • EP-CL
PARTICIPANTS OF COMPARATIVE MATRIX: UK, US, SINGAPORE, AUSTRALIA, SOUTH AFRICA AND INDIA
UK – The UK Corporate Governance Code 2018(hereinafter called UK Code), UK Stewardship Code, 2020
USȂ ǡʹͲͲʹǢ
Singapore – Code of Corporate Governance, 2018
Finland- Finnish Corporate Governance Code, 2020
Australia – Corporate Governance Principles and Recommendations – 4th Edition (Effective from January 01, 2020)1
South Africa – King IV Report (2016)
1. https://www.herbertsmithfreehills.com/latest-thinking/4th-edition-asx-corporate-governance-principles-and-recommendations
2. Corporate governance in overseas jurisdictions, Australian Institute of Company Directors.
Lesson 14 • Global Developments 595
Civil law (most of continental Europe, much of Asia) – a system based on detailed written codes.
ǯ ȋ Ȍ Ȃ ǯ
ȋǡȌ ǯȋǡȌǤ
Ȃ
of the other systems may generally operate (for example, civil law in Vietnam or common law in Hong Kong). An
essential feature of most is state ownership of property, state owned enterprises, and strong discretionary powers
ϐ ǡ ϐ
business is done.
Roman Dutch law – based on the ancient Roman law and still relevant in places such as South Africa and Indonesia.
The UK Companies Act, 2006 received Royal Assent on 8th November 2006. The Act has effectively replaced the
ǯ
interest companies.
Ȅ
(a) as depriving a person removed under it of compensation or damages payable to him in respect of the
termination of his appointment as director or of any appointment terminating with that as director, or
(b) as derogating from any power to remove a director that may exist apart from this section.
Duty of Directors (Section 171)
A Director of a company must–
ȋȌ ǯ ǡ
(b) only exercise powers for the purposes for which they are conferred.
General Duties
• Duty to promote the success of the company. (Section172)
• Duty to exercise independent judgment. (Section173)
• ǡ Ǥȋ ͳͶȌ
• ϐ Ǥȋ ͳͷȌ
• ϐǤȋ ͳȌ
• Duty to declare interest in proposed transaction or arrangement. (Section177)
• Duty to declare interest in existing transaction or arrangement. (Section 182)
• ͳͺͷϐ
to which it relates.
Duty to prepare Directors’ remuneration report (Section 420 & 422)
ȋϐ
͵ͲȌ ǡ ϐ Directors report must contain
ǯ ǯ
ϐ its part
requirement of that Schedule as to how the information is to be set out
Ǥ ǯ
of the Board by a Director or the secretary of the company. Every copy of the said report which is laid before
the company in general meeting or which is otherwise circulated, published or issued, shall state the name of the
Ǥ ǯ
the registrar shall be signed on behalf of the Board by a Director or the Secretary of the company.
Members’ approval of Directors’ remuneration report (Section 439)
The company to which this section applies must, prior to the meeting, give to the members of the company notice
ǡ ǯ
ϐ ǯ ȋ
section 439A).
Notice shall be given to each such member in any manner permitted for the service on him of notice of the meeting.
The business that may be dealt with at the meetings shall include the resolution. The existing Directors must ensure
that the resolution is put to vote at the meeting. No entitlement of a person to remuneration is made conditional on
the resolution being passed by reason only of the provision made. If the resolution is not put to vote at the meeting,
ϐǤ
A Private Company is not required to have a Secretary. However, a public company must have a Secretary. It is the
ȋ
Secretary) of the company –
ȋȌ
of Secretary of the company, and
ȋȌ ϐ Ǥ
ϐ Ȃ
ȋȌ ϐ ϐ
preceding his appointment as Secretary;
ȋȌ ϐȂ
a. the Institute of Chartered Accountants in England and Wales;
b. the Institute of Chartered Accountants of Scotland;
Ǥ ϐ Ǣ
d. the Institute of Chartered Accountants in Ireland;
e. the Institute of Chartered Secretaries and Administrators;
f. the Chartered Institute of Management Accountants;
g. the Chartered Institute of Public Finance and Accountancy.
(c) that he is a barrister, advocate or solicitor called or admitted in any part of the United Kingdom;
(d) that he is a person who, by virtue of his holding or having held any other position or his being a member
of any other body, appears to the Directors to be capable of discharging the functions of Secretary of the
company.
Duty to keep register of Secretaries (Section 275)
ȋͳȌ Ǥ
(2) The register must contain the required particulars of the person who is, or persons who are, the Secretary or
Joint Secretaries of the company.
ȋ͵Ȍ Ȃ
ȋȌ ǯϐ ǡ
ȋȌ ϐǤ
(4) The company must give notice to the registrar–
ȋȌ ǡ
(b) of any change in that place,
ǯϐ Ǥ
(5) The register must be open to the inspection–
(a) of any member of the company without charge, and
(b) of any other person on payment of such fee as may be prescribed.
Duty to notify registrar of changes (Section 276)
(1) A company must, within the period of 14 days from–
(a) a person becoming or ceasing to be its secretary or one of its Joint Secretaries, or
(b) the occurrence of any change in the particulars contained in its register of Secretaries,
give notice to the registrar of the change and of the date on which it occurred.
600 Lesson 14 • EP-CL
(2) Notice of a person having become Secretary, or one of Joint Secretaries, of the company must be
accompanied by a statement by the company that the person has consented to act in the relevant capacity.
ȋ͵Ȍ ǡ ϐ who is
in default.
ϐ Ǥ
ȋͶȌ ϐ ͷ
Ƭǡ ǡϐ Ǧͷ
the standard scale, one-tenth of the greater of £5,000 or level 4 on the standard scale.
Duty to keep accounting records (Section 386)
(1) Eve Ǥ
ȋʹȌ ϐ Ȃ
ȋȌ ǯ ǡ
ȋȌ ǡǡϐ ǡ
and
(c) to enable the Directors to ensure that any accounts required to be prepared comply with the
requirements of this Act .
(3) Accounting records must, in particular, contain–
(a) entries from day to day of all sums of money received and expended by the company and the matters
ǡ
(b) a record of the assets and liabilities of the company.
ȋͶȌ ǯǡ Ȃ
ȋȌ ϐ ǡ
ȋȌ ȋȌ
been or is to be prepared, and
(c) except in the case of goods sold by way of ordinary retail trade, statements of all goods sold and
ǡϐ
ϐǤ
It is important to report meaningfully when discussing the application of the Principles and to avoid boilerplate
Ǥ ǡ
resulting outcomes. High-quality reporting will include signposting and cross-referencing to those parts of the
annual report that describe how the Principles have been applied. This will help investors with their evaluation of
company practices.
The effective application of the Principles should be supported by high-quality reporting on the Provisions.
Ǯ ǯ Ǯ Ǧ ǯǤ
ϐ ǡ
ǡ ǡ Ǥ ǡ
ǡ Ǥ
Where a departure from a Provision is intended to be limited in time, the explanation should indicate when the
company expects to conform to the Provision. Explanations are a positive opportunity to communicate, not an
onerous obligation.
In line with their responsibilities under the UK Stewardship Code, investors should engage constructively and
discuss with the company any departures from recommended practice. In their consideration of explanations,
ǯ Ǥ
right to challenge explanations if they are unconvincing, these must not be evaluated in a mechanistic way. Investors
ϐ Ǥ
Application
The Code is applicable to all companies with a premium listing, whether incorporated in the UK or elsewhere. The
new Code applies to accounting periods beginning on or after 1st January 2019.
For parent companies with a premium listing, the board should ensure that there is adequate co-operation within
the group to enable it to discharge its governance responsibilities under the Code effectively. This includes the
ǯǡǤ
Externally managed investment companies (which typically have a different board and company structure that may
Ȍ ǯ
Governance Code to meet their obligations under the Code. In addition, the Association of Financial Mutuals
produces an annotated version of the Code for mutual insurers to use.
Aim and Objectives of the Code
The 2018 Code has been designed to set higher standards of corporate governance in the UK so as to promote
transparency and integrity in business and, at the same time, attract investment in the UK in the long-term,
ϐ Ǥǡϐ ʹͲͳͺ
Ǥ ǡǡ
a clear purpose and strategy aligned with healthy corporate culture, high quality board composition and a focus on
diversity, and remuneration which is proportionate and supports long-term success.
ϐ ǣ
(1) Board leadership and company purpose
(2) Division of responsibilities
(3) Composition, succession and evaluation
ȋͶȌ ǡ
(5) Remuneration
Lesson 14 • Global Developments 607
Division of A. The chair leads the board and is responsible for its overall effectiveness in directing
Responsibilities the company. They should demonstrate objective judgment throughout their
tenure and promote a culture of openness and debate. In addition, the chair
facilitates constructive board relations and the effective contribution of all non-
executive directors, and ensures that directors receive accurate, timely and clear
information.
B. The board should include an appropriate combination of executive and non-executive
(and, in particular, independent non-executive) directors, such that no one individual
ǯ ǦǤ
be a clear division of responsibilities between the leadership of the board and the
ǯǤ
Ǥ Ǧ ϐ
responsibilities. They should provide constructive challenge, strategic guidance,
offer specialist advice and hold management to account.
D. The board, supported by the company secretary, should ensure that it has the
policies, processes, information, time and resources it needs in order to function
ϐ Ǥ
Composition, A. Appointments to the board should be subject to a formal, rigorous and transparent
Succession and procedure, and an effective succession plan should be maintained for board and
Evaluation senior management. Both appointments and succession plans should be based on
merit and objective criteria and, within this context, should promote diversity of
ǡ ǡ Ǥ
Ǥ ǡ
Ǥ
whole and membership regularly refreshed.
C. Annual evaluation of the board should consider its composition, diversity and how
Ǥ
should demonstrate whether each director continues to contribute effectively.
608 Lesson 14 • EP-CL
ǡ Ǥ
ϐǡϐ ͵ͳst March 2021.
The Stewardship Code was revised following a consultation which closed on 29th March 2019.
Revised Guidance on Board Effectiveness
The revised Guidance on Board Effectiveness is considerably longer and includes new commentary on areas such as
ǡ Ǥ
ǡ Ǥ ǡ
ǡ ǡǡ Ǥ
Overview of new requirements: 12 principles/reporting requirements for asset owners
Principle1 - Signatories' purpose, investment Signatories are required to explain both the purpose
beliefs, strategy, and culture enable stewardship of the organisation and to give an outline of its culture,
that creates longterm value for clients and values, business model and strategy as well as their
ϐ ϐ investment beliefs, i.e. what factors they consider
the economy, the environment and society: important for desired investment outcomes and why.
In addition, the Code requires signatories to explain
beliefs, strategy and culture enable effective stewardship.
ǡ ̵
how their purpose and investment beliefs have guided
their stewardship, investment strategy and decision-
have been in serving the best interests of clients and
ϐ Ǥ
Principle 6- Signatories take account of client and Signatories should explain either:
ϐ
a) how they have evaluated the effectiveness of
and outcomes of their stewardship and investment their chosen methods to understand the needs of
to them: Ȁ ϐ Ǣ
ϐ
ǡ
result; OR
Ȍ
Ǣ
where their managers have not followed their
stewardship and investment policies, and the
reason for this; OR
c) where they have not managed assets in alignment
with their clients' stewardship and investment
policies, and the reason for this.
Principle 7- Signatories systematically integrate The revised Code requires that signatories explain
stewardship and investment, including material how information gathered through stewardship has
environmental, social and governance issues, and informed acquisition, monitoring and exit decisions,
ǡϐǣ either directly or on their behalf, and with reference to
Ȁϐ Ǥ
Principle 8 - Signatories monitor and hold to Signatories should explain:
account managers and/or service providers:
a) how the services have been delivered to meet
their needs; OR
Ȍ ̵
expectations of their managers and/or service
providers have not been met.
The revised Code gives as an example (among others)
that asset managers monitoring data and research
providers should ensure the quality and accuracy of
their products and services.
Principle 9 - Signatories engage with issuers to Signatories should describe the outcomes of engagement
maintain or enhance the value of assets: that is ongoing or has concluded in the preceding 12
ǡ Ǥ
The Code includes a number of examples including
(among others): how outcomes of engagement have
informed investment decisions (buy, sell, hold); and
how outcomes of engagement have informed escalation.
Principle 10 - Signatories, where necessary, Signatories should describe the outcomes of collaborative
ϐ engagement. For example: a) any action or change(s)
issuers directly or by others on their behalf: made by the issuer(s); b) how outcomes of engagement
have informed investment decisions (buy, sell, hold); and
c) whether their stated objectives have been met.
Principle 11-Signatories, where necessary, escalate Signatories should describe the outcomes of escalation
ϐ ǣ Ǥ
Including (for example): any action or change(s) made
by the issuer(s); any action or change(s) made by the
issuer(s); any action or change(s) made by the issuer(s);
and any changes in engagement approach.
612 Lesson 14 • EP-CL
Principle 12 - Signatories actively exercise their For listed equity assets, signatories should provide
rights and responsibilities: examples of the outcomes of resolutions they have voted
on over the past 12 months.
Principle 1- Signatories' purpose, strategy and The Code requires signatories to disclose an assessment
culture enable them to promote effective steward- of how effective they have been in serving the best
ship: interests of clients.
Principle 2-Signatories' governance, workforce, Signatories should disclose both:
resources and incentives enable them to promote
a) how effective their chosen governance structures
effective stewardship:
and processes have been in supporting their
clients stewardship; and
b) how they may be improved.
Principle 3-Signatories identify and manage The Code requires that signatories disclose examples of
ϐ ϐ Ǥ
ϐǣ ϐ ȋ
are not limited to): ownership structure, business
relationships, cross directorships and client interests
diverging from each other.
Principle 4-Signatories identify and respond to The Code requires signatories to disclose the extent
market-wide and systemic risks to promote a well- of their contribution and an assessment of their
ϐ ǣ effectiveness in identifying and responding to systemic
Ǧ ϐ Ǥ
Principle 5-Signatories support clients' integration The Code requires signatories to explain:
of stewardship and investment, taking into account,
material environmental, social and governance Ȍ ̵
issues, and communicating what activities they
have undertaken: services; and
b) the effectiveness of their chosen methods
for communicating with clients and
understanding their needs, and how they
evaluated their effectiveness.
Principle 6 -Signatories review their policies and The Code requires that signatories explain how the
assure their processes:
continuous improvement of stewardship practices.
A Business Corporation Act is the collection of laws in each state that governs corporations.
A model corporation statute compiled by the American Bar Association has been adopted in whole or in part by,
ϐ es of many states.
Secretary (1.40)
Dz dz ϐ
8.40(c) to maintain of the minutes of the meetings of the board of Directors and of the share holders and for
authenticating records of the corporation.
ϔ ȋ ;ǤͺͶȌ
ȋȌ ϐ
with the by laws.
ȋȌ ϐϐ Ǥϐ
ϐ ϐ Ǧ Ǥ
ȋ Ȍ Ǧ ϐ
ͳǤͲͳȋȌǤ
ȋȌ Ǧǡϐ
a corporation.
ϔ ȋ ;ǤͺͷȌ
ϐ ǡ
Ǧǡ ϐ
ϐ Ǥ
614 Lesson 14 • EP-CL
a. notice of the special meeting was not given within 30 days after the date the demand was
ǯ Ǣ
b. the special meeting was not held in accordance with the notice.
ȋȌ ϐ ǡ
meeting, specify a record date for determining shareholders entitled to notice of and to vote at the meeting,
ǡ ϐ ϐ
considered at the meeting (or direct that the votes represented at the meeting constitute a quorum for action
on those matters), and enter other orders necessary to accomplish the purpose or purposes of the meeting.
Quorum and Voting Requirements for Voting Groups (Section 7.25)
ȋȌ
of those shares exists with respect to that matter. Unless the articles of incorporation or this Act provide
Lesson 14 • Global Developments 617
otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum
of that voting group for action on that matter.
(b) Once a share is represented for any purpose at a meeting, it is, unless established the contrary, presumed
present for quorum purposes for the remainder of the meeting.
(c) If a quorum exists, action on a matter (other than the election of Directors) by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless
ϐǤ
Voting Trusts (Section 7.30)
(a) One or more share holders may create a voting trust, conferring on a trustee the right to vote or otherwise
act for them, by signing an agreement setting out the provisions of the trust (which may include anything
consistent with its purpose) and transferring their shares to the trustee. When a voting trust agreement is
ǡϐ
trust, together with the number and class of shares each transferred to the trust, and deliver copies of the list
ǯ ϐ Ǥ
(b) A voting trust becom ϐ ǯ
name.
(c) Limits, if any, on the duration of a voting trust shall be as set forth in the voting trust. A voting trust that
became effective when this Act provided a 10-year limit on its duration remains governed by the provisions
of this section concerning duration then in effect, unless the voting trust is amended to provide otherwise by
unanimous agreement of the parties to the voting trust.
Requirement for and Duties of Board of Directors (Section 8.01)
(a) Except as provided in section 7.32, each corporation must have a Board of Directors.
(b) All corporate powers shall be exercised by or under the authority of, and the business and affairs of the
corporation managed by or under the direction of, its board of Directors, subject to any limitation set forth in
the articles of incorporation or in an agreement authorized under section7.32.
ϔ ȋ ;ǤͶȌ
ϐ
state or a shareholder of the corporation unless the articles of incorporation or by-laws so prescribe.
Number and Election of Directors (Section 8.03)
ȋȌ ǡ ϐ ϐ
accordance with the articles of incorporation or by laws.
(a) The number of directors may be increased or decreased from time to time by amendment to, or in the manner
provided in, the articles of incorporation or by-laws.
ȋ Ȍ ϐǯ
elected by written consent in lieu of an annual meeting as permitted by section 7.04 or unless their terms are
staggered under section 8.06.
Resignation of Directors (Section 8.07)
(a) A Director may resign at any time by delivering written notice to the board of Directors, its chairman, or to the
Secretary.
ȋȌ ϐ Ǥ
618 Lesson 14 • EP-CL
ϐ ǡ s, accuracy, and controls, the SOX Act of 2002 also outlines
requirements for information technology (IT) departments regarding electronic records. The act does not specify
ϐ ϐ
how long. The standards outlined in the SOX Act of 2002 do not specify how a business should store its records, just
ǯ ǯǤ
The Sarbanes-Oxley Act (SOX) is the primary federal law governing corporate governance and accountability across
multiple aspects of corporate business practice.
ϐ ǡǡǡ ǡǦ
disclosure by reporting companies, insider trading, anti-fraud, proxy regulation and so forth. SOX established a new
regulatory body, increased the authority of existing regulators, as well as imposed regulations beyond those of the
self-regulating, industry organizations.
The primary objectives of SOX are to promote:
• Fairness to Shareholders – SOX requires or promotes governance provisions that protect shareholder
rights and allow shareholders to exercise those rights through governance procedures, such as shareholder
meetings.
• Fairness to Stakeholders Ȃ
the interests of employees, suppliers, buyers, and the local community.
• Heightened Director and Board Responsibilities Ȃ ϐ
ǡ Ǥǡ
ǡ Ǥ
Example: SOX requires boards appoint an audit committee where all members are independent of corporate
ȋϐ Ȍϐ Ǥ
• ϐ – SOX imposes additional obligations on corporations to establish and maintain
ϐ ǦǤ
Example: Ǥ
• Disclosure and Accountability – SOX places requirements on boards to increase transparency in corporate
governance practices. This includes implementing procedures for ensuring accurate accounting practices
and public disclosure mechanisms.
Note: SOX requires internal review procedures and independence of external auditors that report directly
ǯ Ǥ ǡϐ
ȋ Ȍ ϐ ϐ
ǯǤ
• Accounting and Disclosure Procedures Ȃ ϐ
reporting requirements of public companies. The primary requirements are as follows:
• The Public Company Accounting Oversight Board (PCAOB) – SOX established the PCAOB to regulate
auditors charged with reviewing the accounting procedures and disclosure statements of public companies.
Note: Prior to the establishment of the PCAOB, public company auditors were self-regulated or subject to
the standards imposed by private institutions, such as the Financial Accounting Standards Board (FASB) or
ϐ ȋ ȌǤ
• External Auditing Firms Ȃϐ
ϐǤ ǡ
designs and implementation, appraisals and valuations, actuarial services, human resources functions, and
Ǥ ǡ ϐ
ͷǤ
ϐǤ
Lesson 14 • Global Developments 621
Compensation Committee
Listed companies have a compensation committee composed entirely of independent directors. The compensation
ȄȄ ǡ
ǯ ͳͲǦϐǤ
Nominating/Corporate Governance Committee
U.S. listed companies must have a Nominating/Corporate Governance Committee (or equivalent body) composed
ǡǡ ϐ
ϐ ǯǡ
corporate governance guidelines to the Board of Directors. This provision is not binding for non-U.S. private issuers.
Remuneration Committee
U.S. listed companies must have a Remuneration Committee composed entirely of independent Directors who
must satisfy the independence requirements provided for its members. The Remuneration Committee must have a
ǯ
rules.
The Remuneration Committee may, in its sole discretion, retain or obtain the advice of a compensation consultant,
independent legal counsel or other adviser and shall be directly responsible for the appointment, compensation
ǡ
it.
These provisions are not binding for non-U.S. private issuers.
AUSTRALIA
Legislative history
In Australia, prior to the ǤǤ ǡ ͳͺͶͶǡ ǡ
ǦǦǦ Ǥ
Corporations Law
In Australia, Corporations are registered and regulated by the Commonwealth Government. Corporations law has
ϐ ǡʹͲͲͳǤ
challenge in New South Wales v. Commonwealth ȋͳͻͻͲȌͳͻͶͺʹȋǮ ǯȌǤ
ǡʹͲͲͳ ǯǤ Ǥ
This Act sets out the laws dealing with business entities in Australia at federal and interstate level. Although the
focus of the Act is primarily on companies, it also covers some laws relating to other entities such as partnerships
and managed investment schemes. All states have adopted the Act.
The Corporation Regulations, 2001 contains all the regulations made under the Corporations Act, 2001.
Special Rules for the appointment of Directors for single Director/single shareholder proprietary companies.
The Director of a proprietary company who is its only Director and only shareholder may appoint another Director
by recording the appointment and signing the record. If a person who is the only Director and the only shareholder
Ǣ ǯ Ǣ
a personal representative or trustee ǯ ǡ
representative or trustee may appoint a person as the Director of the company.
ϐ Ǣ
person is the only Director and th Ǣ
ǯǢ Ǥ
of appointment as aforesaid may appoint themselves as Director. A person appointed as a Director of a company as
ϐ Ǥ
Remuneration of Directors
The Directors of a company are to be paid the remuneration that the company determines by resolution. The
company may ǯ ǣ ȋȌ
ǯ ǢȋȌ
Ǣȋ Ȍ ǯǤ
Members may obtain information about Director’s remuneration.
A company must disclose the remuneration paid to each Director of the company or a subsidiary (if any) by the
company or by an entity controlled by the company if the company is directed to disclose the information by:
(a) members with at least 5% of the votes that may be cast at a general meeting of the company; or
(b) at least 100 members who are entitled to vote at a general meeting of the company. The company must
disclose all remuneration paid to the Director, regardless of whether it is paid to the Director in relation to
their capacity as Director or another capacity.
The company must comply with the direction as soon as practicable by:
ȋȌ ϐ
year before the direction was given; and
(b) having the statement audited; and
(c) sending a copy of the audited statement to each person entitled to receive notice of general meetings of the
company.
Special Rules for single Director/single shareholder proprietary companies.
A person who is the only Director and the only shareholder of a proprietary company is to be paid any remuneration
Ǥ ǯ
ǯǤ
Company Secretaries
Appointment:
A company other than a proprietary company must have a Company Secretary. However, a proprietary company
may choose to have a Company Secretary. The Directors appoint the Company Secretary. A Company Secretary must
be at least eighteen (18) years old. If a company has only one Company Secretary, they must ordinarily reside in
Australia. If a company has more than one Company Secretary, at least 1 of them must ordinarily reside in Australia.
Consent:
A Company Secretary must consent in writing to holding the position of Company Secretary. The company must
within 28 days.
Lesson 14 • Global Developments 625
The same person may be both a Director of a company and the Company Secretary.
Generally, a Company Secretary may resign by giving written notice of resignation to the company. A Company
Secretary who resigns may notify ASIC of the resignation. If the Company Secretary does not do so, the company
ǯǤ
ϐ ǡ ǡ
imposed by the Corporations Act on compϐ Ǥ
Responsibilties to notify ASIC
ϐ ǡ
ensuring that the company:
• ϐ ǡ ǯ
secretaries; and
• ϐASIC about changes to the register of members; and
• ϐ Ǣ
• responds, if necessary, to an extract of particulars that it receives and that it responds to any return of
particulars that it receives.
ǯ Ǥ
Auditors
The following may be appointed as auditor of a company for the purposes of the Act:
(a) An individual;
ȋȌ ϐǢ
(c) A company.
In case of Proprietary Company, the Directors may appoint an auditor for the company if an auditor has not been
appointed by the company in general meeting.
Ǥϐ
ǡǡȋȌϐǢȋȌ
company auditors. This is so whether or not those persons are resident in Australia.
ϐ ǡ
ϐ ǡ
ϐǤ
ϐ
ϐ ǡǣ
ȋȌ ϐǢ
(b) in his or her own name.
ϐ
ϐ ϐǤ
ϐǡ ǣ
ȋȌ ϐǢ
ȋȌ ϐǢ
acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent
ǡϐǤ
626 Lesson 14 • EP-CL
The Directors of a public company must appoint an auditor of the company within one month after the day on which
a company is registered as a company unless the company at a general meeting has appointed an auditor.
ϐ
ϐ ϐ Ǥ
ϐ Ǣǡǡϐ Ǣ
as auditor; or ceases to be auditor.
Corporate Governance in Australia: Recent Development
Australia
Corporate Governance Principles and Recommendations – 4th Edition
(Effective from January 01, 2020)
On 27 February 2019, the ASX Corporate Governance Council (Council) issued its Fourth Edition of its Corporate
Governance Principles and Recommendations. The Government in Australia encouraged the Companies to
familiarize themselves with the revised content as it may require some adjustment or additions to its corporate
governance processes, as well as to Corporate Governance Statement required under Listing Rule 4.10.3.
Fourth Edition: Key Takeaways
Ȉ ͺ Ǥ
• Nine recommendations have been added on how to apply the principles, resulting in 35 in total (up from 29
in the Third Edition). However, three of these recommendations only apply in certain limited cases, and
• Additional commentary has been added to various principles and recommendations.
The 8 Principles
• Lay solid foundations for management and oversight: A listed entity should clearly delineate the respective
roles and responsibilities of its board and management and regularly review their performance.
• Structure the board to be effective and add value: The board of a listed entity should be of an appropriate
ǡ
operates, to enable it to discharge its duties effectively and to add value.
Lesson 14 • Global Developments 627
• Instill a culture of acting lawfully, ethically and responsibly: A listed entity should instil and continually
reinforce a culture across the organization of acting lawfully, ethically and responsibly.
• Safeguard the integrity of corporate reports: A listed entity should have appropriate processes to verify
the integrity of its corporate reports.
• Make timely and balanced disclosureǣ
matters concerning it that a reasonable person would expect to have a material effect on the price or value of
its securities.
• Respect the rights of security holders: A listed entity should provide its security holders with appropriate
information and facilities to allow them to exercise their rights as security holders effectively.
• Recognize and manage riskǣ
Ǥ
• Remunerate fairly and responsiblyǣ ϐ
and retain high quality Directors and design its executive remuneration to attract, retain and motivate high
quality senior executives and to align their interests with the creation of value for security holders and with
ǯǤ
CANADA
ǡ Ǥ ǡ
ǡ ǯ Ȃ
(CBCA), as well as corporate legislation in each of the 10 provinces. Upon implementation of the CBCA in 1975, a
deliberate and fairly successful effort was made to harmonize the provincial statutes to the new federal regime in
Canada.
There is no federal securities regulator in Canada. Although Canada has adopted securities regimes which are very
much American in concept and approach, each province has its own securities law regime.
About the Act
When the CBCA came into force in 1975, it was considered a leading-edge corporate law statute.
Structure and functions of the Board
Under the CBCA, the articles of incorporation are to set out the number of Directors or the minimum and maximum
number of Directors of the incorporation. A corporation may have one or more Directors but if any of its issued
securities are or were part of a distribution to the public and remain outstanding and are held by more than one
ǡ ǡϐ
ϐǤ
INCORPORATION
Incorporators (Section 5)
An individual may incorporate a corporation only if that individual
(a) is not less than 18 years of age;
(b) is not incapable; or
ȋ Ȍ Ǥ
Bodies Corporate
One or more bodies corporate may incorporate a corporation by signing articles of incorporation and complying
with section 7.
628 Lesson 14 • EP-CL
(2) Unless the articles otherwise provide, a Director of a corporation is not required to hold shares
issued by the corporation.
ȋ͵ǤͳȌǡǦϐ
resident Canadians. However, if a corporation has less than four Directors, at least one Director
must be a resident Canadian.
(3.1) If a corporation engages in an activity in Canada in a prescribed business sector or if a corporation,
by an Act of Parliament or by a regulation made under an Act of Parliament, is required, either
individually or in order to engage in an activity in Canada in a particular business sector, to attain
ϐ ǡ ǡ
restriction in relation to, the number of voting shares that any one shareholder may hold, own or
control, then a majority of the Directors of the corporation must be resident Canadians.
ȋ͵ǤʹȌ ȋ͵ǤͳȌ ϐ
or percentage of resident Canadian Directors that otherwise applies to a corporation referred to in
that sub-section.
(3.3) If a corporation referred to in sub-section (3.1) has only one or two Directors, that Director or one
of the two Directors, as the case may be, must be a resident Canadian.
(4) Despite sub-section (3.1), not more than one-third of the Directors of a holding corporation
referred to in that sub-section need be resident Canadians if the holding corporation earns in
ϐ
holding corporation and all of its subsidiary bodies corporate together as shown in:
ȋȌ ϐ
section157;
ȋȌ ϐ
ϐ Ǥ
Section 109. (1) Subject to paragraph 107(g), the shareholders of a corporation may by ordinary resolution
ϐ Ǥ
(2) Where the holders of any class or series of shares of a corporation have an exclusive right
to elect one or more Directors, a Director so elected may only be removed by an ordinary
resolution at a meeting of the shareholders of that class or series.
(3) Subject to paragraphs 107(b) to (e), a vacancy created by the removal of a Director may be
ϐ ǡϐǡ
ϐ ͳͳͳǤ
(4) If all of the Directors have resigned or have been removed without replacement, a person
who manages or supervises the management of the business and affairs of the corporation
is deemed to be a Director for the purposes of this Act.
(5) Sub-section (4) does not apply to:
ȋȌ ϐ
or control of a shareholder or other person;
(b) a lawyer, notary, accountant or other professional who participates in the management
of the corporation solely for the purpose of providing professional services; or
ȋ Ȍ ǡ ǡ Ǧǡ
who participates in the management of the corporation or exercises control over its
property solely for the purpose of the realization of security or the administration of a
ǯǡ Ǥ
Section 112. (1) The shareholders of a corporation may amend the articles to increase or, subject to
paragraph 107(h), to decrease the number of Directors, or the minimum or maximum
number of Directors, but no decrease shall shorten the term of an incumbent Director.
630 Lesson 14 • EP-CL
(2) Where the shareholders at a meeting adopt an amendment to the articles of a corporation
to increase or, subject to paragraph 107(h) and to subsection (1), decrease the number or
minimum or maximum number of Directors, the shareholders may, at the meeting, elect the
number of Directors authorized by the amendment, and for that purpose, notwithstanding
Ǧ ͳͻȋͳȌʹʹȋ͵Ȍǡ ϐ
deemed to be amended as of the date the shareholders adopt the amendment.
Section 114. (1) Unless the articles or by-laws otherwise provide, the Directors may meet at any place and on
such notice as the by-laws require.
(2) Subject to the articles or by-laws, a majority of the number of Directors or minimum number
of Directors required by the articles constitutes a quorum at any meeting of Directors, and,
notwithstanding any vacancy among the Directors, a quorum of Directors may exercise all
the powers of the Directors.
(3) Directors, other than Directors of a corporation referred to in sub-section105(4), shall not
transact business at a meeting of Directors unless,
ȋȌ Ǧ ͳͲͷȋ͵Ȍǡ Ǧϐ
the Directors present are resident Canadians or, if the corporation has less than four
Directors, at least one of the Directors present is a resident Canadian; or
(b) if the corporation is subject to sub-section 105(3.1), a majority of Directors present
are resident Canadians or if the corporation has only two Directors, at least one of the
Directors present is a resident Canadian.
(4) Despite subsection (3), Directors may transact business at a meeting of Directors where the
number of resident Canadian Directors, required under that subsection, is not present if:
(a) a resident Canadian Director who is unable to be present approves in writing, or by
telephonic, electronic or other communication facility, the business transacted at the
meeting; and
(b) the required number of resident Canadian Directors would have been present had that
Director been present at the meeting.
(5) A notice of a meeting of Directors shall specify any matter referred to in sub-section 115(3)
that is to be dealt with at the meeting but, unless the by-laws otherwise provide, need not
specify the purpose of or the business to be transacted at the meeting.
(6) A Director may in any manner waive a notice of a meeting of Directors; and attendance
of a Director at a meeting of Directors is a waiver of notice of the meeting, except where a
Director attends a meeting for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully called.
(7) Notice of an adjourned meeting of Directors is not required to be given if the time and place
of the adjourned meeting is announced at the original meeting.
(8) Where a corporation has only one Director, that Director may constitute a meeting.
(9) Subject to the by-laws, a Director may, in accordance with the regulations, if any, and if all the
Directors of the corporation consent, participate in a meeting of Directors or of a committee
of Directors by means of a telephonic, electronic or other communication facility that
permits all participants to communicate adequately with each other during the meeting. A
Director participating in such a meeting by such means is deemed for the purposes of this
Act to be present at that meeting.
Section 118. (1) Directors of a corporation who vote for or consent to a resolution authorizing the issue of
a share under section 25 for a consideration other than money are jointly and severally, or
ǡ
received is less than the fair equivalent of the money that the corporation would have
received if the share had been issued for money on the date of the resolution.
Lesson 14 • Global Developments 631
(2) Directors of a corporation who vote for or consent to a resolution authorizing any of the
following are jointly and severally, or solidarily, liable to restore to the corporation any
amounts so distributed or paid and not otherwise recovered by the corporation:
(a) a purchase, redemption or other acquisition of shares contrary to section 34, 35 or36;
(b) a commission contrary to section41;
(c) a payment of a dividend contrary to section42;
(d) a payment of an indemnity contrary to section 124;or
(e) a payment to a shareholder contrary to section 190 or241.
ȋ͵Ȍ ϐ
contribution from the other Directors who voted for or consented to the unlawful act on
which the judgment was founded.
(4) A Director liable under subsection (2) is entitled to apply to a court for an order compelling
a shareholder or other recipient to pay or deliver to the Director any money or property that
was paid or distributed to the shareholder or other recipient contrary to section 34, 35, 36,
41, 42, 124, 190 or 241.
ȋͷȌ ȋͶȌ ǡϐ
equitable to do so,
(a) Order a share holder or other recipient to pay or deliver to a Director any money or
property that was paid or distributed to the shareholder or other recipient contrary
to section 34, 35, 36, 41, 42, 124,190 or 241;
(b) order a corporation to return or issue shares to a person from whom the corporation
has purchased, redeemed or otherwise acquired shares; or
ȋ Ȍ ϐǤ
ȋȌ
that the share was issued for a consideration less than the fair equivalent of the money that
the corporation would have received if the share had been issued for money is not liable
under sub-section(1).
(7) An action to enforce a liability imposed by this section may not be commenced after two
years from the date of the resolution authorizing the action complained of.
Shareholders
Section 132 (1) Meetings of shareholders of a corporation shall be held at the place within Canada provided
in the by-laws or, in the absence of such provision, at the place within Canada that the
Directors determine.
(2) Despite sub-section (1), a meeting of shareholders of a corporation may be held at a place
ϐ
at the meeting agree that the meeting is to be held at that place.
(3) A shareholder who attends a meeting of shareholders held outside Canada is deemed to have
agreed to it being held outside Canada except when the shareholder attends the meeting for
the express purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully held.
(4) Unless the by-laws otherwise provide, any person entitled to attend a meeting of shareholders
may participate in the meeting, in accordance with the regulations, if any, by means of a
telephonic, electronic or other communication facility that permits all participants to
ǡ
available such a communication facility. A person participating in a meeting by such means
is deemed for the purposes of this Act to be present at the meeting.
632 Lesson 14 • EP-CL
(5) If the Directors or the shareholders of a corporation call a meeting of shareholders pursuant
to this Act, those Directors or shareholders, as the case may be, may determine that the
meeting shall be held, in accordance with the regulations ,if any, entirely by means of a
telephonic, electronic or other communication facility that permits all participants to
communicate adequately with each other during the meeting, if the by-laws so provide.
Section 133. (1) The Directors of a corporation shall call an annual meeting of shareholders
(a) not later than eighteen months after the corporation comes into existence; and
ȋȌ ǡ ϐ
ǯ
ϐ Ǥ
(2) The Directors of a corporation may at any time call a special meeting of share holders.
(3) Despite subsection (1), the corporation may apply to the court for an order extending the
time for calling an annual meeting.
Section 135. (1) Notice of the time and place of a meeting of shareholders shall be sent within the prescribed
period to –
(a) each shareholder entitled to vote at the meeting;
(b) each Director; and
(c) the auditor of the corporation.
(1.1) In the case of a corporation that is not a distributing corporation, the notice may be sent
ϐ ǦǤ
(2) A notice of a meeting is not required to be sent to shareholders who were not registered on
the records of the corporation or its transfer agent on the record date determined under
paragraph 134(1)(c) or subsection 134(2), but failure to receive a notice does not deprive a
shareholder of the right to vote at the meeting.
(3) If a meeting of shareholders is adjourned for less than thirty days it is not necessary, unless
the by-laws otherwise provide, to give notice of the adjourned meeting, other than by
announcement at the earliest meeting that is adjourned.
(4) If a meeting of shareholders is adjourned by one or more adjournments for an aggregate
of thirty days or more, notice of the adjourned meeting shall be given as for an original
meeting but, unless the meeting is adjourned by one or more adjournments for an aggregate
of more than ninety days, subsection149(1) does not apply.
(5) All business transacted at a special meeting
of shareholders and all business transacted Ordinary Business at AGM:
at an annual meeting of shareholders, except Consideration of Financial Statements,
ϐ ǡ ǯ report, election of Directors
ǯ ǡ and re-appointment of the incumbent
re-appointment of the incumbent auditor, is auditor.
deemed to be special business.
(6) Notice of a meeting of shareholders at which special business is to be transacted shall state
ϐ
judgment thereon; and the text of any special resolution to be submitted to the meeting.
Section 137. ȋͳȌ Ǧ ȋͳǤͳȌȋͳǤʹȌǡϐ
are entitled to be voted at an annual meeting of shareholders may
(a) submit to the corporation notice of any matter that the person proposes to raise at the
meeting (a “proposal”); and
Lesson 14 • Global Developments 633
(b) discuss at the meeting any matter in respect of which the person would have been
entitled to submit a proposal.
1.1 To be eligible to submit a proposal, a person:
ȋȌ ǡ ǡ ϐ
owner of at least the prescribed number of outstanding shares of the corporation; or
(b) must have the support of persons who, in the aggregate, and including or not including
the person that submits the proposal, have been, for at least the prescribed period,
ǡϐ ǡ
outstanding shares of the corporation.
1.2 A proposal submitted under paragraph (1)(a) must be accompanied by the following
information:
ȋȌ ǯǡ Ǣ
ȋȌ ǯ ǡ
applicable, and the date the shares were acquired.
1.3 The information provided under subsection (1.2) does not form part of the proposal or of
the supporting statement referred to in subsection (3) and is not included for the purposes
of the prescribed maximum word limit set out in subsection (3).
1.4 If requested by the corporation within the prescribed period, a person who submits a
proposal must provide proof, within the prescribed period, that the person meets the
requirements of subsection (1.1).
(2) A corporation that solicits proxies shall set out the proposal in the management proxy
circular required by section 150 or attach the proposal thereto.
(3) If so requested by the person who submits a proposal, the corporation shall include in the
management proxy circular or attach to it a statement in support of the proposal by the
person and then name and address of the person. The statement and the proposal must
together not exceed the prescribed maximum number of words.
(4) A proposal may include nominations for the election of Directors if the proposal is signed by
ϐ
ϐ
the meeting to which the proposal is to be presented, but this subsection does not preclude
nominations made at a meeting of shareholders.
(5) A corporation is not required to comply with subsections (2) and (3) if
(a) the proposal is not submitted to the corporation at least the prescribed number of days
before the anniversary date of the notice of meeting that was sent to shareholders in
connection with the previous annual meeting of shareholders;
(b) it clearly appears that the primary purpose of the proposal is to enforce a personal
ǡϐ
or security holders;
ȋǤͳȌ ϐ
or affairs of the corporation;
(c) not more than the prescribed period before the receipt of a proposal, a person failed
to present, in person or by proxy, at a meeting of shareholders, a proposal that at the
ǯǡ
meeting;
(d) substantially the same proposal was submitted to shareholders in a management
ǯ
634 Lesson 14 • EP-CL
held not more than the prescribed period before the receipt of the proposal and did
not receive the prescribed minimum amount of support at the meeting; or
(e) the rights conferred by this section are being abused to secure publicity.
(5.1) If a person who submits a proposal fails to continue to hold or own the number of shares
referred to in subsection (1.1) up to and including the day of the meeting, the corporation
is not required to set out in the management proxy circular, or attach to it, any proposal
submitted by that person for any meeting held within the prescribed period following the
date of the meeting.
(6) No corporation or person acting on its behalf incurs any liability by reason only of circulating
a proposal or statement in compliance with this section.
(7) If a corporation refuses to include a proposal in a management proxy circular, the corporation
shall, within the prescribed period after the day on which it receives the proposal or the day
on which it receives the proof of ownership under subsection (1.4), as the case may be,
notify in writing the person submitting the proposal of its intention to omit the proposal
from the management proxy circular and of the reasons for the refusal.
(8) On the application of a person submitting a proposal who claims to be aggrieved by a
ǯ ȋȌǡ
ϐǤ
(9) The corporation or any person claiming to be aggrieved by a proposal may apply to a court
for an order permitting the corporation to omit the proposal from the management proxy
ǡ ǡϐ ȋͷȌǡ
ϐǤ
(10) An applicant under sub-section (8) or (9) shall give the Director notice of the application
and the Director is entitled to appear and be heard in person or by counsel.
Section 138. (1) A corporation shall prepare an alphabetical list of its shareholders entitled to receive notice
of a meeting, showing the number of shares held by each share holder,
ȋȌ ϐͳ͵ͶȋͳȌȋ Ȍǡ
date; or
ȋȌ ϐǡ ͳ͵ͶȋʹȌȋȌǤ
ȋʹȌ ϐͳ͵ͶȋͳȌȋȌǡ ǡ
no later than ten days after the record date, an alphabetical list of shareholders entitled to
vote as of the record date at a meeting of shareholders that shows the number of shares held
by each shareholder.
ȋ͵Ȍ ϐ ͳ͵ͶȋͳȌȋȌǡ
ǡ ϐͳ͵ͶȋͳȌȋ Ȍ
later than the record date established under paragraph 134(2)(a), as the case may be, an
alphabetical list of share holders who are entitled to vote as of the record date that shows
the number of shares held by each shareholder.
(3.1) A shareholder whose name appears on a list prepared under subsection (2) or (3) is entitled
to vote the shares shown opposite their name at the meeting to which the list relates.
(4) A shareholder may examine the list of share holders during usual business hours at the
ϐ
maintained; and at the meeting of shareholders for which the list was prepared.
Section 139. (1) Unless the by-laws otherwise provide, a quorum of share holders is present at a meeting of
shareholders, irrespective of the number of persons actually present at the meeting, if the
holders of a majority of the shares entitled to vote at the meeting are present in person or
represented by proxy.
Lesson 14 • Global Developments 635
(2) If a quorum is present at the opening of a meeting of shareholders, the shareholders present
may, unless the by-laws otherwise provide, proceed with the business of the meeting,
notwithstanding that a quorum is not present throughout the meeting.
(3) If a quorum is not present at the opening of a meeting of shareholders, the shareholders
ϐ
business.
(4) If a corporation has only one shareholder, or only one holder of any class or series of shares,
the shareholder present in person or by proxy constitutes a meeting.
Insider Trading
Section 126. (1) In this Part, “business combination” means an acquisition of all or substantially all the
property of one body corporate by another, or an amalgamation of two or more bodies
corporate, or any similar reorganization between or among two or more bodies corporate;
“insider” means, except in section 131,
ȋȌ ϐ Ǣ
ȋȌ ϐ Ǣ
ȋ Ȍ ϐ
a distributing corporation; and
(d) a person employed or retained by a distributing corporation;
Dzϐ dz ǡ ǡ Ǧǡ
secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing
Director, of an entity, or any other individual who performs functions for an entity similar to those
ϐ Ǣ
“share” means a share carrying voting rights under all circumstances or by reason of the occurrence
of an event that has occurred and that is continuing, and includes
(a) a security currently convertible into such a share, and
(b) currently exercisable options and rights to acquire such a share or such a convertible
security.
(2) For the purposes of this Part,
ȋȌ ϐ ϐ ǡ ǡ
shares of a distributing corporation, or that exercises control or direction over shares of
the distributing corporation, or that has a combination of any such ownership, control
and direction, carrying more than the prescribed percentage of voting rights attached
to all of the outstanding shares of the distributing corporation not including shares
held by the body corporate as underwriter while those shares are in the course of a
distribution to the public is deemed to be an insider of the distributing corporation;
ȋȌ ϐ
insider of its holding distributing corporation;
ȋ Ȍ ϐ ϐ
corporate controlled directly or indirectly by the person;
ȋȌ ϐ ϐ
ϐǢ
(e) The acquisition or disposition by an insider of an option or right to acquire a share is
ϐ
right to acquire relates.
636 Lesson 14 • EP-CL
Section 130. ȋͳȌ ǡ ǡ
ϐ
fully paid for the security to be sold.
ȋʹȌ ǡ ǡ
ϐǤ
(3) Despite sub section (1), an insider may sell a security they do not own if they own another
security convertible into the security sold or an option or right to acquire the security sold
and, within ten days after the sale, they
(a) exercise the conversion privilege, option or right and deliver the security so acquired
to the purchaser; or
(b) transfer the convertible security, option or right to the purchaser.
(4) An insider who contravenes sub section (1) or (2) is guilty of an offence and liable on
ϐ
ϐǡ Ǥ
HONG KONG
Hong Kong has a ϐ
in Asia. Hong Kong companies can easily carrying out business in the Peoples Republic of China and throughout
Asia. Hong Kong incorporated companies are increasingly becoming the chosen entities for conducting trading
ϐǤ
Companies are guided by the Hong Kong Companies Ordinance.
Hong Kong Companies Ordinance is enforced by the Company Registry of Hong Kong. The primary functions of the
Hong Kong Company Registry include the incorporation of local companies; the registration of oversea companies;
the registration of documents required to be submitted by registered companies; the deregistration of defunct,
Ǣ ϐ
provisions of the Hong Kong Companies Ordinance; the provision of facilities to inspect and obtain company
information; and advising the Government on policy and legislative issues regarding company law and related
legislation, including the Overall Review of the Hong Kong Companies Ordinance.
(2) On and after the date of incorporation, the body corporate is capable of exercising all the functions of an
incorporated company, and has perpetual succession.
(3) On and after the date of incorporation, the founder members, and any other persons who may from time to
ǯǡ
the company being wound up as is mentioned in the Companies (Winding Up and Miscellaneous Provisions)
Ordinance.
(5) Any amount remaining unpaid on shares being converted under subsection (2)(e) is to be divided equally
among the replacement shares.
(6) If shares are cancelled under sub-section (2)(f), the company must reduce its share capital by the amount of
the shares cancelled.
(7) For the purposes of Part 5, a cancellation of shares under this section is not a reduction of share capital.
ȋͺȌ ǯ Ǥ
Directors and Company Secretaries – Requirement to have Directors
Public company and company limited by guarantee required to have at least 2 Directors (Section 453)
(1) This section applies to –
(a) a public company; and
(b) a company limited by guarantee.
(2) The company must have at least 2 Directors.
ȋ͵Ȍ ǡϐ
named as the Directors in the incorporation form delivered to the Registrar under section 67(1).
(4) A person who is deemed to be a Director of the company under section 153(2) of the pre-amended predecessor
Ordinance immediately before the commencement date of this section continues to be deemed to be a
Director of the company as if section19 (1) of Schedule 2 to the Companies (Amendment) Ordinance 2004
had not been enacted, until a notice of appointment of a Director is delivered to the Registrar in accordance
with section 645(1).
ȋͷȌ ϐ ȋȌ ǯ
ϐ ǡ
exercisable also where the number of Directors is reduced below the number required by subsection(2).
ȋȌ ϐǦ ȋͷȌ Ȅ
(a) increasing the number of Directors; or
(b) calling a general meeting of the company, but not for any other purpose.
Private company required to have at least one Director (Section 454)
(1) A private company must have at least one Director.
ȋʹȌ ǡϐ
persons named as the Directors in the incorporation form delivered to the Registrar under section 67(1).
(3) A person who is deemed to be a Director of a private company under section 153A(2) of the pre-amended
predecessor Ordinance immediately before the commencement date of this section continues to be deemed
to be a Director of the company as if section 20 (1) of Schedule 2 to the Companies (Amendment) Ordinance
2004 (30 of 2004) had not been enacted, until a notice of appointment of a Director is delivered to the
Registrar in accordance with section 645(1).
Appointment of Directors
Minimum age for appointment as Director (Section 459)
(3) A person must not be appointed a Director of a company unless at the time of appointment the person has
attained the age of 18 years.
(2) An appointment made in contravention of sub-section (1) is void.
(3) Nothing in this section affects any liability of a person under any provision of this Ordinance or the Companies
(Winding-Up and Miscellaneous Provisions) Ordinance if the person–
Lesson 14 • Global Developments 641
Appointment of Auditor
Eligibility for appointment (Section 393)
(1) Only a practice unit is eligible for appointment as auditor of a company under this Sub-division.
ȋʹȌ ϐ ǦȂ
ȋȌ ϐ Ǣ
(b) a person who is a partner or employee of a person mentioned in paragraph(a);
(c) a person who –
ȋȌ ǡ ȋȌ ȋȌǡ ϐ
ǡǡ
Ǣ
SINGAPORE
ϐ ͳͻǤ
legislations effected from time to time. In view of technological advancements, globalization and the regional
economies undergoing massive changes, the Government saw that a major revamp of the Companies Act was due.
ǡ ȋ Ȍ ͳͻͻͻǤ
ǯ
will promote a competitive economy.
ϐ ʹͲͲʹ
by the Government. Since then the Singapore Companies Act has been amended three times to give effect to the
recommendations of the CLRFC, the major being Amendment Acts of 2004 and 2005.
Salient features of Singapore Companies Act
Formation of companies (Section 17)
(1) Any person may, whether alone or together with another person, by subscribing his name or their names to
a constitution and complying with the requirements as to registration, form an incorporated company.
(2) A company may be –
(a) a company limited by shares;
644 Lesson 14 • EP-CL
(3) The above said right include any right to attend or vote at meetings and for the purposes of this Act, the
company shall be treated as having no right to vote and the treasury shares shall be treated as having no
voting rights.
ȋͶȌ ǡȋ Ȍ ǯ
(including any distribution of assets to members on a winding up) may be made, to the company in respect of
the treasury shares.
ȋͷȌ Ȃ
(a) an allotment of shares as fully paid bonus shares in respect of the treasury shares; or
(b) the subdivision or consolidation of any treasury share into treasury shares of a greater or smaller
amount, if the total value of the treasury shares after the sub-division or consolidation is the same as
the total value of the treasury share before the subdivision or consolidation, as the case may be.
(6) Any shares allotted as fully paid bonus shares in respect of the treasury shares shall be treated for the purpose
of this Act as if they were purchased by the company at the time they were allotted, in circumstances in which
section 76H applied.
Company may have duplicate common seal (Section 124)
A company may, if authorized by its constitution, have a duplicate common seal which shall be a facsimile of the
common seal of the company with the ad Dzdz ϐ
duplicate seal shall be deemed to be sealed with the common seal of the company for the purposes of this Act.
ȋȌ ϐ ͷΨ ȋ
required by this Act for a special resolution); or
ȋȌ ϐ ǡ
membership of professional associations, as may be prescribed.
ȋͳȌ ϐ
ϐ
Ǥ
(1B) Any person who is appointed by the Directors of a company as a secretary shall, at the time of his appointment,
ǡ ϐ
prescribed form that he consents to act as secretary and providing the prescribed particulars.
(1E) Where a Director is the sole Director of a company, he shall not act or be appointed as the secretary of the
company.
Annual general meeting (Section 175)
(1) A general meeting of every company to be called the “annual general meeting” must, in addition to any other
ǡ ϐ Ȅ
(a) 4 months in the case of a public company that is listed; or
(b) 6 months in the case of any other company.
ȋʹȌ Ǧ ȋͳȌȋȌȋȌȄ
ȋȌ ǡ Ǣ
(b) in respect of any prescribed class of companies.
Subject to notice being given to all persons entitled to receive notice of the meeting, a general meeting may be held
at any time and the company may resolve that any meeting held or summoned to be held shall be the annual general
meeting of the company.
When private company need not hold annual general meeting (Section 175A)
A company need not ϐ Ȅ
(a) if it is a private company in respect of which there is in force a resolution passed in accordance with subsection
(2) to dispense with the holding of annual general meetings;
ȋȌ ǡϐ ǡ
ʹͲ͵ȋͳȌ ϐ
in section 203(1)(b); or
ȋ Ȍ ǡϐ ǡ
ǡ ʹͲͳǡ ʹͲͳϐ Ǥ
Scheme of Implementation
Lesson 14 • Global Developments 649
Engaged Stakeholders
Inclusive approach beyond shareholders
Supportive Ecosystem
Advocacy Initiatives to support companies
Facilitative Framework
Support Constructive and purposeful corporate governance practices
Audit Committee
Internal Audit (IA):
• Establish independent and adequately resourced IA function.
• Review adequacy, effectiveness, independence of IA.
External Audit (EA):
• Review adequacy, effectiveness and independence, scope and results of EA.
• ʹǦ ǦȀ ϐǤ
• In respect of appointments and re-appointments of external auditors, the AC should evaluate the performance
ǡ
by the Accounting and Corporate Regulatory Authority (ACRA).
Whistleblowing:
• ǡǮǯ Ǥ
Shareholders:
• Disclose director AGM attendance.
• Publish minutes of AGM on website.
Dividends:
• Establish and communicate dividend policy.
• Disclose reason not to declare a dividend.
Lesson 14 • Global Developments 651
ǣ
• ǡǤ
• Ǥ
• Maintain a current corporate website.
Remuneration
Value creation:
• Ǥ
Employee remuneration:
• ϐȋ Ȍ
ǡ̈́ʹͷͲǡͲͲͲǤ
• ̈́ͳͲͲȋ ȌȂ
̈́ͷͲǤ
• ̈́ͳͲͲȋȌǤ
FINLAND
THE FINNISH CG CODE, 2020
The new Corporate Governance Code for Finnish listed companies (“2020 CG Code”) entered into force from 01
January 2020 replacing the previous CG Code applied since 2016 (“2015 CG Code”). The purpose of the Corporate
Governance Code is to harmonize the procedures of listed companies and to promote openness with regard to
corporate governance and remuneration. From the perspective of a shareholder and an investor, the Corporate
Governance Code increases the transparency of corporate governance and the ability of shareholders and investors
to evaluate the practices applied by individual companies. The Corporate Governance Code also provides investors
Ǥ
While the number of recommendations in the 2020 CG Code has decreased, the 2020 CG Code introduces additional
requirements on listed companies, in particular in relation to remuneration and related party transactions as
required by the Sharehǯ Ǥ ʹͲʹͲ
ϐ
recommendation concerning the assessment and disclosure of independence of board members. For example,
ǯ
(“remuneration policy”) and remuneration report for governing bodies (“remuneration report”), which are
ǯǤ
ǯ ǡǡǡ Ǥ
Information on th ǯ
Ǥ Ǥǡ
the board must in future report which of the board members are independent of the company and which are
ǯ ϐ Ǥ ǡ
Ǥ
ǡϐ
and offered to a member of the board by a shareholder otherwise than on the basis of an employment or service
relationship may require assessment.
ǯ ʹͲͳͻǤ
As a result of which the new 2020 CG Code came into force in January 2020 replacing the previous Finnish CG Code.
Ǯ ǯ Ǥǡ
with all recommendations set out in the CG Code.
652 Lesson 14 • EP-CL
Key Changes
Remuneration reporting – remuneration policy and report for governing bodies
The structure of the remuneration section has been revised to correspond to the requirements of the Second
Shareholder Rights Directive, and ǡ ǯ
the remuneration policy for governing bodies (“remuneration policy”) and remuneration report for governing
bodies (“remuneration redzȌǡ ǯ Ǥ
ǯ ǡǡǡ
managing director and deputy managing director. Information on the remuneration of the rest of the management
ǯ Ǥ
Ǥ
The point of departure in reporting remains that all requirements arising from legislation are included in the
mandatory reporting section of the Corporate Governance Code. This means that, as opposed to the recommendations
of the Corporate Governance Code, the requirements presented in the Reporting section cannot be derogated from
Ǯ ǯ Ǥ
Corporate Governance Code following the Recommendations section.
Management Team
Recommendation 21, which concerned other executives, has been removed and replaced with instructions
Ǥ Ǯ ǯ
ǡ Ǯ
ǯǡ ǯ Ǥ
Information on the remuneration of the rest of the management team is no longer part of the remuneration report,
ǯǤ
LESSON ROUND-UP
GLOSSARY
Governance Process of intraction through the laws, norms, power or language or an organised society
over a societal system.
TEST YOURSELF
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation.)
1. The extension of corporate activity beyond the frontiers of the country has given rise to complex problems.
Discuss.
2. Discuss the essential ingredients of a good system of company law.
3. The ultimate control of the company lies with the majority of shareholders. Discuss.
4. Discuss, in brief, distinguishing features of company law in United Kingdom.
ͷǤ ϐ Ǥ
6. Enumerate brief provisions regarding formation of companies under the Singapore Companies Act.
Lesson 14 • Global Developments 655
• ǣȀȀǤǤǤȀȀʹͲͲȀͶȀ
• https://www.legislation.gov.au/Details/C2018C00424
• ǣȀȀǤ ǤǤȀ ȀͷͷͻͳǦͻ͵ǦͶ ͶǦͺͳͶǦͳͶͳͷͳͺȀǦ̴
Final2.pdf
• ǣȀȀ ǤȀȀȀϐȀ Ȁ Ȁ Ǧ Ǧ ǦʹͲʹͲǤ
• ǣȀȀǤ ǤǤȀ Ȁͳͻǫ αͳ Ǧ
• https://laws-lois.justice.gc.ca/eng/acts/c-44/
656 Lesson 14 • EP-CL
Lesson 15 Board Constitution and its Powers
Key Concepts One Learning Objectives
Should Know
To understand:
• Board of Director
• Board Composition, its Power and Restrictions.
• Vigil Mechanism
• Role of Board, which is responsible for the company’s overall
• Committees commercial performance as well.
• Board Composition • Aims and objectives of Different committees constituted by the
• Stakeholder Board of the Company along with essential for its effective
Relationship functioning.
• Audit Committee • To analyse upon the formation of different Committees and their
respective roles.
• Nomination and
Remuneration
Committee
• CSR Committee
Lesson Outline
• Introduction
• Board Composition
• Restriction and Powers of Board
• Board Committees- Audit Committee, Nomination and
Remuneration Committee, Stakeholders Relationship Committee
and other Committees
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
658 Lesson 15 • EP-CL
Regulatory Framework
The Companies Act, 2013
Section 135 Corporate Social Responsibility
Section 149 Company to have Board of Directors
Section 165 Number of Directorships
Section177 Audit Committee
Section 178 Nomination & Remuneration Committee
Section 179 Powers of Board
Section 180 Restrictions on Powers of Board
Section 181 Company to Contribute to Bona Fide and Charitable Funds etc.
Section 182 Prohibitions and Restrictions Regarding Political Contributions
Section 183 Power of Board and Other Persons to Make Contributions to National
Defense Fund, etc.
The Companies (Meetings of Board and its Powers) Rules, 2014
Rule 6 Committees of the Board
Rule 7 Establishment of Vigil Mechanism
Rule 8 Powers of Board
The Companies (Corporate Social Responsibility Policy) Rules, 2014
Rule 5 CSR Committees
Regulation 17-22 of the SEBI (LODR) Regulations, 2015
Secretarial Standard-I (SS-I)
INTRODUCTION
The Board of Directors (BoD) of a company is the nucleus, selected according to the procedure prescribed in the
Companies Act, 2013 and the Articles of Association of the Company. Members of the Board of Directors are known
ǡǡ ϐ ǡ
possess any power of management in respect of the day-to-day affairs of the Company. The Board of Directors
oversees how the management serves and protects the long term interests of all the stakeholders of the Company.
The institution of Board of Directors is based on the premise that a group of trustworthy individuals shall look after
the interests of a large number of shareholders/stakeholders who are not directly involved in the management of
the Company. The position of Board of Directors is that of a Trustee since the Board is entrusted with the
responsibility to act in the best interests of the Company safeguarding the interest of all stakeholders. Acting
collectively as a Board of Directors, they can exercise all the powers of the Company except those, which are
ϐ Ǥ
ǡ
policies in order to achieve the objectives contained in the Memorandum, muster resources for achieving the
company objectives and control, guide, direct and manage the affairs of the Company.
ʹȋͳͲȌ ǡʹͲͳ͵ϐDz dzDzdzǡ ǡ
means the collective body of the Directors of the company.
Thus, the term ‘Board of Directors’ means a body duly constituted to direct, control and supervise the affairs of the
company.
As per Section 149 of the Companies Act, 2013, the Board of Directors of every company shall consist of individuals
Ǥǡ ǡ ϐ Ǥ
Lesson 15 • Board Constitution and its Powers 659
Executive Director: ʹȋͳȌȋȌ ȋ ϐ ϐ Ȍ ǡ ʹͲͳͶ
Dz dz ϐ ȋͻͶȌ ʹ ǡʹͲͳ͵Ǥ
Whole Time Director: ʹȋͻͶȌ ǡ ʹͲͳ͵ DzDzǦ dz
director in the whole-time employment of the company.
Non-Executive Director: Nowhere described under Companies Act, 2013. However, meaning of non- executive
ϐ Ǥ
ϐǮ ǯ ǮǦ ǯǤ
Independent Directors:ʹȋͶȌ ǡʹͲͳ͵Dz dz
director referred to in section 149(6) of the Companies Act, 2013.
Thus, independent directors are board members who have no material relations with the company’s
ǡǡϐ Ǥ
BOARD COMPOSITION
Section 149(1) of the Companies Act, 2013 requires that every company shall have a minimum number of 3
Directors in case of a public company, 2 Directors in the case of a private company, and 1 Director in the case of a
Ǥ ͳͷȋϐȌ ϐ compliance. A
ϐ General Meeting.
Thus, the maximum number of Director is 15, which can be increased by passing a special resolution in the
General Meeting of the Company.
Section 8 companies can have more than 15 Directors even without passing a special resolution.
Section 149(3) provides that every company shall have at least one Director who has stayed in India for a total
ǦȋͳͺʹȌϐ Ǥ
Provided that in case of a newly incorporated company the requirement under this sub-section shall apply
ϐ Ǥ
ǡ ͳͶͻȋͳȌ͵ȋϐ
Directors) Rules, 2014, following class of companies must have at least one Women Director.
Women Director
Listed Companies • All listed Companies
Public Companies • with paid up share capital of Rs.100 crore or more; or
• with turnover of Rs. 300 crore or more
A company, which has been incorporated under the Companies Act, 2013 and is covered under provisions of second
proviso to section 149(1) shall comply with such provisions within a period of six months from the date of its
incorporation.
660 Lesson 15 • EP-CL
For reckoning the limit of Directorships of twenty companies, the Directorship in a dormant company shall not
be included.
The members of a company may, however by passing a special resolution specify any lesser number of companies
in which a director of the company may act as a director.
Exceptions:
Section 165(1) that provides for maximum number of Directorship that a person can hold including alternate
Directorship to be twenty companies - shall not be applicable to a section 8 company.
If a person accepts an appointment as a director in violation of section 165 of the Companies Act, 2013, he shall be
ϐ ǡ
to a maximum of two lakh rupees.
Let’s Remember:
ϐʹͲ
public companies in which a person can be appointed as a Director shall not exceed ten (10).
The members of a company may, by special resolution, specify any lesser number of companies in which a
Director of the company may act as Director.
The Board may, by a resolution passed at a meeting, delegate to any Committee of Directors, the Managing Director,
ϐ ϐ ǡ
ϐ ϐ ǡ ϐȋȌȋȌ Ǥ
The acceptance by a banking company in the ordinary course of its business of deposits of money from the public
repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise, or the placing of monies
on deposit by a banking company with another banking company on such conditions as the Board may prescribe,
shall not be deemed to be a borrowing of monies or, as the case may be, a making of loans by a banking company
within the meaning of section 179 of the Companies Act, 2013.
Section 179(3)(d) of the Companies Act, 2013 shall not apply to borrowings by a banking company from other
banking companies or from the Reserve Bank of India, the State Bank of India or any other banks established by or
under any Act.
ǡ ϐ
Section 179(3)(d) of the Companies Act, 2013 shall mean the arrangement made by the company with its bankers
for the borrowing of money by way of overdraft or cash credit or otherwise and not the actual day-to-day operation
on overdraft, cash credit or other accounts by means of which the arrangement so made is actually availed of.
However, nothing in section 179 shall be deemed to affect the right of the company in general meeting to impose
ϐ Ǥ
Exceptions:
• In case of Section 8 companies resolutions related to clauses (d), (e) and (f) of sub-section (3) of Section
179 of the Act i.e. borrow monies, to invest funds of the company and to grant loans or give guarantee or
provide security in respect of loans by section 8 companies may be decided by the Board by circulation
instead of at a meeting ȋϔ ǦͻǤͼǤͶͷͻȌ.
• In case of ϐ Ȁ ϐ - In sub-section (3) of Section
179, after the second proviso, the following proviso shall be inserted, namely:-
Dz ϐ ǡ
dzǦ ϔ
ͺ ͶͷͽǤ
Invest otherwise in trust securities the amount To remit, or give time for the repayment of,
of compensation received by it as a result of any debt due from a director.
any merger or amalgamation.
The Board can exercise following powers only with the consent of the company by passing a special resolution,
namely –
(a) to 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 of
such undertakings.
Explanation ͳͺͲȋȌȋȌϐDzdzǤ
ȋȌDzUndertakingdz
Ǥ ϔ
Ǥ ϔ Ǣ
ȋȌDzsubstantially the whole of the undertakingdzϔ
Ǥ ϔ Ǥ
(b) to invest otherwise in trust securities the amount of compensation received by it as a result of any merger or
amalgamation;
(c) to borrow money, where the money to be borrowed, together with the money already borrowed by the
company will exceed aggregate of its paid-up share capital, free reserves and securities premium apart from
temporary loans obtained from the company’s bankers in the ordinary course of business;
The acceptance by a banking company, in the ordinary course of its business, of deposits of money from
the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise,
shall not be deemed to be a borrowing of monies by the banking company within the meaning of this
clause.
ǤȄ ǡDzdz
Ǧǡ ǡ
Ǧ ǡ
ϔ Ǥ
(d) to remit, or give time for the repayment of, any debt due from a director.
The special resolution relating to borrowing money exceeding paid up capital, free reserves and securities premium
shall specify the total amount up to which the money may be borrowed by the Board.
Nothing contained in clause (a) of sub-section (1) of Section 180 shall affect—
(a) the title of a buyer or other person who buys or takes on lease any property, investment or undertaking as is
referred to in that clause, in good faith; or
(b) the sale or lease of any property of the company where the ordinary business of the company consists of, or
comprises, such selling or leasing.
Any special resolution passed by the company consenting to the transaction as is referred to in clause (a) of sub-
ȋͳȌ ͳͺͲ ϐ ǡ
regarding the use, disposal or investment of the sale proceeds which may result from the transactions.
Provided that this sub-section shall not be deemed to authorise the company to effect any reduction in its capital
except in accordance with the provisions contained in this Act.
The debt incurred by the company exceeding the limit imposed by clause (c) of sub-section (1) of Section 180 of the
Act, is not valid or effectual, unless the lender proves that the loan was advanced in good faith and also having no
knowledge of limit imposed had been exceeded.
Lesson 15 • Board Constitution and its Powers 665
Power of Board and other Persons to make Contributions to National Defence Fund, etc. [Section 183]
The Board of Directors of any company or any person or authority exercising the powers of the Board of Directors
ǡ ǡ ϐ
Defence Fund or any other Fund approved by the Central Government for the purpose of national defence.
ϐ
ϐ Ǥ
666 Lesson 15 • EP-CL
BOARD COMMITTEES
However, the Board of Directors is ultimately responsible for the acts of the Committees. Board is responsible for
ϐǯ Ǥ
The structure of a board and the planning of the board’s work are key elements to effective governance. Establishing
committees is one way of managing the work of the board, thereby strengthening the board’s governance role.
Boards should regularly review its own structure and performance and whether it has the right committee structure
and an appropriate scheme of delegation from the board.
A Board can set up committees with particular terms of reference when it needs assistance (for example a New
project sub-committee) or when an issue requires more resources and attention (review of effect of legislative
changes on organisational programs).
ϐ Ǯǯǡ
established on a short-term or temporary basis, or they can be formed as a permanent body for ongoing work.
A Board can either delegate some of its powers to the committee, enabling it to act directly, or can require the
recommendations of the committee to be approved by the Board. The Board will normally depend heavily on the
ϐ ǡϐ
will be made by the Board. Committees thus have an important role to play in company governance.
AUDIT COMMITTEE
Audit Committee is one of the main pillars of the Corporate Governance mechanism in any company. The Committee
ϐ ϐ
ǯ ϐ ǡ
management systems.
The constitution of Audit Committee is mandated under the Companies Act, 2013 and the SEBI (Listing Obligations
and Disclosure Requirements) Regulations, 2015.
The requirement of Independent Directors forming a majority is not applicable to Section 8 companies
(ϔ ͻǦͼǦͶͷͻ).
Composition of the Audit Committee under Regulation 18 of the SEBI (LODR) Regulations, 2015
ͳͺǣ ϐ
accordance with the terms of reference, subject to the following:
(a) The audit Committee shall have minimum three Directors as members.
(b) Two-thirds of the members of audit Committee shall be Independent Directors and in case of a listed entity
having outstanding SR equity shares, the audit Committee shall only comprise of Independent Directors
ȋ Ȍ ϐ
ϐ Ǥ
Lesson 15 • Board Constitution and its Powers 669
(d) The Chairperson of the audit committee shall be an Independent Director and he/she shall be present at the
Annual General Meeting to answer shareholders’ queries.
(e) The Company Secretary shall act as the Secretary to the Audit Committee.
Meetings/Quorum
• The Companies Act 2013 does not provide for Frequency of meeting of the Audit Committee. However, as per
SS-1, Committees shall meet as often as necessary subject to the minimum number and frequency prescribed
by any law or any authority or as stipulated by the Board.
• A member of the Committee appointed by the Board or elected by the Committee as Chairman of the
Committee, in accordance with the Act or any other law or the Articles, shall conduct the Meetings of the
Committee. If no Chairman has been so elected or if the elected Chairman is unable to attend the Meeting, the
Committee shall elect one of its members present to chair and conduct the Meeting of the Committee, unless
otherwise provided in the Articles.
• The auditors of a company and the key managerial personnel shall have a right to be heard in the meetings of
the Audit Committee when it considers the auditor’s report but shall not have the right to vote.
• Quorum for Audit Committee meeting – As per SS-1, the quorum for meetings of the committee constituted
ϐǤ ϐǡ
of any such committee is necessary to form the quorum. Regulations framed under any other law may contain
provisions for the quorum of a committee and such stipulations shall be followed.
For listed companies, Regulation 18 of the SEBI (Listing Obligations and Disclosure Requirements)
Regulations, 2015 provide for the minimum number of meetings and quorum of the audit committee.
(i) The Audit Committee of a listed entity shall meet at least four (4) times in a year and not more than
120 days shall elapse between two meetings.
(ii) The quorum for audit Committee meeting shall either be 2 members, or 1/3rd of the members of the
Audit Committee, whichever is greater; with at least 2 Independent Directors.
ȋȌ ϐ ϐ ǡ
head of internal audit and a representative of the statutory auditor and any other such executives to be
present at the meetings of the committee. However, occasionally the audit committee may meet
without the presence of any executives of the listed entity
(b) Review and monitor the auditor’s independence and performance, and effectiveness of audit process;
ȋ Ȍ ϐ ǯǢ
ȋȌ ϐ Ǣ
The Audit Committee may make omnibus approval for related party transactions proposed to be entered into
by the company subject to such conditions as prescribed under rule 6A of the Companies (Meetings of Board
and its Powers) Rules, 2014.
Further in case of transaction, other than transactions referred to in section 188 (Related Party Transactions),
and where Audit Committee does not approve the transaction, it shall make its recommendations to the
Board.
ͷͶ Dz Ǧ
ǡ ǡ ǡ dzǤ
In case any transaction involving any amount not exceeding one crore rupees is entered into by a Director or
ϐ ϐ
Audit Committee within three months from the date of the transaction, such transaction shall be voidable at
the option of the Audit Committee and if the transaction is with the related party to any Director or is
authorised by any other Director, the Director concerned shall indemnify the company against any loss
incurred by it.
The provisions of this clause shall not apply to a transaction, other than a transaction referred to in section
188, between a holding company and its wholly owned subsidiary company.
(e) Scrutiny of inter-corporate loans and investments;
(f) Valuation of undertakings or assets of the company, wherever it is necessary;
ȋȌ ϐ Ǣ
(h) Monitoring the end use of funds raised through public offers and related matters.
The Role of Audit Committee and the review of information by Audit Committee is prescribed under Part C
of Schedule II of SEBI (LODR) Regulation, 2015. The role of Audit Committee under the Regulation 18 is
wider than the Companies Act, 2013, which includes:
• ǯϐ ϐ
ϐ ǡϐ Ǣ
• Recommendation for appointment, remuneration and terms of appointment of auditors of the listed entity;
• Approval of payment to statutory auditors for any other services rendered by the statutory auditors;
• ǡ ǡ ϐ ǯ
submission to the Board for approval, with particular reference to:
(a) Matters required to be included in the Director’s responsibility statement to be included in the Board’s
report in terms of clause (c) of sub-section (3) of Section 134 of the Companies Act, 2013;
(b) Changes, if any, in accounting policies and practices and reasons for the same;
(c) Major accounting entries involving estimates based on the exercise of judgment by management;
ȋȌ ϐ ϐ ϐǢ
ȋȌ ϐ Ǣ
(f) Disclosure of any related party transactions;
ȋȌ ϐȋȌǢ
• ǡǡϐ Ǣ
Lesson 15 • Board Constitution and its Powers 671
• Reviewing, with the management, the statement of uses / application of funds raised through an issue (public
issue, r ǡ ǡ ǤȌǡ
stated in the offer document / prospectus / notice and the report submitted by the monitoring agency
ǡ
to the Board to take up steps in this matter;
• Reviewing and monitoring the auditor’s independence and performance, and effectiveness of audit process;
• ϐ Ǣ
• Scrutiny of inter-corporate loans and investments;
• Valuation of undertakings or assets of the listed entity, wherever it is necessary;
• ϐ Ǣ
• Reviewing, with the management, performance of statutory and internal auditors, adequacy of the internal
control systems;
• Reviewing the adequacy of internal audit function, if any, including the structure of the internal audit
ǡϐϐ ǡ
frequency of internal audit;
• ϐ ϐǢ
• ϐ
suspected fraud or irregularity or a failure of internal control systems of a material nature and reporting the
matter to the Board;
• Discussion with statutory auditors before the audit commences, about the nature and scope of audit as well
as post-audit discussion to ascertain any area of concern;
• To look into the reasons for substantial defaults in the payment to the depositors, debenture holders,
shareholders (in case of non-payment of declared dividends) and creditors;
• To review the functioning of the whistle blower mechanism;
• ϐ ϐ ϐ ǡ
background, etc. of the candidate;
• Carrying out any other function as is mentioned in the terms of reference of the audit Committee.
• Ȁ Ȁ
ǤͳͲͲ ͳͲΨǡ
existing loans / advances / investments existing as on the date of coming into force of this provision.
• ǡ Ǧϐ ǡ ǡ
amalgamation etc., on the listed entity and its shareholders.
The Audit Committee shall mandatorily review the following information:
• ϐ Ǣ
• ϐ ȋ ϐ Ȍǡ
management;
• Management letters / letters of internal control weaknesses issued by the statutory auditors;
• Internal audit reports relating to internal control weaknesses; and
• The appointment, removal and terms of remuneration of the chief internal auditor shall be subject to review
by the audit committee.
• Statement of deviations:
» Quarterly statement of deviation(s) including report of monitoring agency, if applicable, submitted to
stock exchange(s) in terms of Regulation 32(1) of the SEBI (LODR) Regulations, 2015.
» Ȁ
prospectus/notice in terms of Regulation 32(7) of the SEBI (LODR) Regulations, 2015.
672 Lesson 15 • EP-CL
Section 177 read with Rule 7 of the Companies (Meetings of Board and its powers) Rules, 2014, every listed company
and the companies belonging to the following class or classes shall establish a vigil mechanism for their Directors
and employees to report their genuine concerns or grievances-
(a) The Companies which accept deposits from the public;
ȋȌ ϐ ϐ
crore rupees.
The vigil mechanism set up as above, shall provide for adequate safeguards against victimisation of employees and
Directors who use such mechanism and make provision for direct access to the Chairperson of the Audit Committee
or the Director nominated to play the role of Audit Committee in appropriate or exceptional cases.
ϐ ǡ
nominated to play the role of audit committee may take suitable action against the concerned director or employee
including reprimand.
The companies which are required to constitute an Audit Committee shall oversee the vigil mechanism through the
ϐ ǡ
recuse themselves and the others on the Committee would deal with the matter on hand.
In case of other companies (not required to constitute Audit Committee), the Board of Directors shall nominate a
Director to play the role of Audit Committee for the purpose of vigil mechanism to whom other Directors and
employees may report their concerns.
The details of establishment of the Vigil Mechanism is required to be disclosed by the company on its website, if any,
and in the Board’s report.
Lesson 15 • Board Constitution and its Powers 673
Illustration:
ϐ ǤǤͻͲ Ǥ
the company on the provisions of the Companies Act, 2013 and the rules made thereunder regarding the vigil
mechanism.
Comparison table of Audit Committee under Companies Act 2013 and SEBI (LODR) Regulations,
2015
S. No. Category The Companies Act,2013 The SEBI (LODR) Regulations, 2015
1 Sections Section 177 of the Companies Act, 2013 Regulation 18 of the SEBI (LODR)
read with Rule 6 of the Companies (Meetings Regulations, 2015.
of Board and its Powers) Rules, 2014.
3. Members of The Audit Committee shall consist of a (a) The Audit Committee shall
Audit minimum of three Directors with have minimum three Directors
Committee Independent Directors forming a majority. as members.
(b) Two-thirds of the members of
audit Committee shall be
Independent Directors
(c) In case of a Listed Entity having
outstanding SR equity shares,
the Audit Committee shall only
comprise of Independent
Directors.
4 Chairman as The Companies Act, 2013 does not The Chairperson of the Audit
Independent prescribe that the Chairman of the Audit Committee shall be an Independent
Director Committee shall be an independent Director.
Director.
5 Financial Majority of members of Audit Committee All members of audit Committee shall
Literacy including its Chairperson shall be persons ϐ
with ability to read and understand the member shall have accounting or
ϐ Ǥ ϐ
expertise.
674 Lesson 15 • EP-CL
6 Role of Audit Companies Act, 2013 prescribe the terms The Role of Audit Committee and
Committee of Reference of the Committee. the review of information by Audit
Committee is prescribed under Part
Every Audit Committee shall act in
C of Schedule II of the SEBI (LODR)
accordance with the terms of reference
Regulation, 2015.
ϐ
shall, ǡ include: The role of Audit Committee under
the Regulation 18 is wider than the
(i) The recommendation for
Companies Act, 2013.
appointment, remuneration and
terms of appointment of auditors of
the company.
(ii) Review and monitor the auditor’s
independence and performance, and
effectiveness of audit process.
ȋȌ ϐ
statement and the auditors’ report
thereon.
(iv) Approval or any subsequent
ϐ
company with related parties.
(v) Scrutiny of inter-corporate loans
and investments.
(vi) Valuation of undertakings or assets
of the company, wherever it is
necessary.
ȋȌ ϐ
controls and risk management
systems.
(viii) Monitoring the end use of funds
raised through public offers and
related matters.
7 Power i) The Audit Committee may call for the The Audit Committee shall have powers
of Audit comments of the auditors about to investigate any activity within its
Committee internal control systems, the scope terms of reference, seek information
of audit, including the observations from any employee, obtain outside
of the auditors and review of legal or other professional advice and
ϐ secure attendance of outsiders with
submission to the Board. relevant expertise, if it considers
necessary.
ii) discuss any related issues with the
internal and statutory auditors and
the management of the company.
iii) to investigate into any matter in
ϐ
sub-section (4) of Section 177 of
the Act or referred to it by the Board
and for this purpose shall have
power to obtain professional advice
from external sources and have full
access to information contained in
the records of the company.
Lesson 15 • Board Constitution and its Powers 675
8 Frequency of The Companies Act 2013 does not provide The Audit Committee shall meet at
Meeting of the for Frequency of meeting of the Audit least four times in a year and not more
Audit Committee than one hundred and twenty days
Committee shall elapse between two meetings.
As per SS-1, Committees shall meet as
often as necessary subject to the minimum
number and frequency prescribed by any
law or any authority or as stipulated by the
Board.
9 Quorum The Companies Act 2013 does not provide The Quorum for Audit Committee
for Quorum for Audit Committee meeting. meeting shall either be two members
or one third of the members of the
As per SS-1, the quorum for Meetings of
Audit Committee, whichever is greater,
any Committee constituted by the Board
with at least two Independent
ϐ Ǥ
Directors.
ϐǡ
all the members of any such Committee is
necessary to form the Quorum.
Illustration:
• RPK Ltd. is an unlisted company having Rs. 9 crore as paid up capital and Rs.52 crore as long term loan.
The directors of the company would like to know from you the answers for the following questions :
ȋͳȌ ǫ
(2) If the company is listed after a fresh issue of shares to the tune of Rs.50 crore, in such a situation,
would the company be liable to constitute ǫ
ȋ͵Ȍ ǫ
• Aarav Ltd. (a listed company) is having an audit committee consisting of six directors and the Board of
Directors of the Company consists of eight directors of which three are independent directors. As a
Practising company secretary, clarify whether Aarav Ltd. has complied with the requirement of
ǫ
• XY Ltd. is a (Unlisted) wholly owned subsidiary of ABC Ltd. (Listed). XY Ltd. annual turnover was Rs.120
crore as per the last audited balance sheet. The auditor of XY Ltd. is of the opinion that, XY Ltd. is covered
Ͷȋϐ ȌǡʹͲͳͶ
Ǥǫ
(ii) all public companies having turnover of one hundred crore rupees or more;
ȋȌ ǡǡǡǡ ϐ
crore rupees.
The paid-up share capital or turnover or outstanding loans, debentures and deposits, as the case may be, as existing
ϐ Ǥ
The following classes of unlisted public company shall not be covered for above purpose:-
(a) a joint venture;
(b) a wholly owned subsidiary; and
ȋ Ȍ ϐ Ͷͷͷ Ǥ
Exceptions:
• ϐ ͲͷǤͲǤʹͲͳͷ ͳͺ
to the Section 8 Companies.
• ϐ ͲͶǤͲͳǤʹͲͳ ͳͺ
ϐ Ǥ
Meetings/Quorum
• As per SS-1, Nomination and Remuneration Committees shall meet as often as necessary subject to the
minimum number and frequency prescribed by any law or any authority or as stipulated by the Board.
• A member of the Committee appointed by the Board or elected by the Committee as Chairman of the
Committee, in accordance with the Act or any other law or the Articles, shall conduct the Meetings of the
Committee. If no Chairman has been so elected or if the elected Chairman is unable to attend the Meeting, the
Committee shall elect one of its members present to chair and conduct the Meeting of the Committee, unless
otherwise provided in the Articles.
Lesson 15 • Board Constitution and its Powers 677
• Section 178(7) stipulates that the chairperson of the committee or, in his absence, any other member of the
committee authorised by him in this behalf shall attend the general meetings of the company.
• Quorum of Nomination and Remuneration Committee meeting – As per SS-1, the quorum for meetings of the
ϐǤ ϐǡ
presence of all the members of any such Committee is necessary to form the quorum. Regulations framed
under any other law may contain provisions for the quorum of a committee and such stipulations shall be
followed.
Under Regulation 19 of SEBI (LODR) Regulations, 2015
• The nomination and remuneration committee shall meet at least once in a year.
• The quorum for a meeting of the nomination and remuneration committee shall be either two members or
one third of the members of the committee, whichever is greater, including at least 1 independent director in
attendance.
• The Chairman of the committee may be present at the Annual General Meeting, to answer the shareholders’
queries. However, it would be up to the Chairman to decide who shall answer the queries.
The Committee shall recommend to the Board, all remuneration, in whatever form, payable to senior management.
ϐ
(LODR) Regulations, 2015.
Exceptions:
In case of Government company - Sub-sections (2), (3) and (4) of Section 178, shall not apply except with
regard to appointment of ‘senior management’ and other employees’. -ϔ ͻ ǡͶͷͻǤ
2. Formulation of criteria for evaluation of performance of Independent Directors and the Board of Directors;
3. Devising a policy on diversity of Board of Directors;
ͶǤ ϐ
accordance with the criteria laid down, and recommend to the Board of Directors their appointment and removal;
ͷǤ ǡ
report of performance evaluation of Independent Directors;
6. Recommend to the Board, all remuneration, in whatever form, payable to senior management.
Comparison table of Nomination and Remuneration Committee under Companies act 2013 and
the SEBI (LODR) Regulations, 2015
S. NO. Category The Companies Act,2013 The SEBI (LODR) Regulations, 2015
1 Section Section 178 of the Companies Act, Regulation 19 of the SEBI (LODR) Regulations,
2013 read with rule 6 of the 2015.
Companies (Meetings of Board and
Its Power) Rules, 2014.
2 Applicability (i) Every listed Public Company; Every Listed entity
(ii) All Public companies with a Dz dz
paid up capital of 10 crore listed, on a recognised stock exchange(s), the
rupees or more; or designated securities issued by it or designated
(iii) All Public companies having securities issued under schemes managed by
turnover of 100 crore rupees or it, in accordance with the listing agreement
more; or entered into between the entity and the
recognised stock exchange(s).
(iv) All Public companies, having in
aggregate, outstanding loans,
debentures and deposits
exceeding 50 crore rupees.
3 Members Nomination and Remuneration The Board of Directors shall constitute the
Committee consisting of three or nomination and remuneration Committee as
more non-executive Directors out of follows:
which not less than one-half shall be (a) the Committee shall comprise of at least
Independent Directors. three Directors;
(b) all Directors of the Committee shall be
non-executive Directors;
ȋ Ȍ ϐ
be Independent Directors; and
(d) In case of a listed entity having outstanding
SR equity shares, two thirds of the
nomination and remuneration Committee
shall comprise of Independent Directors.
4 Chairman The Companies Act, 2013 does not The Chairperson of the nomination and
prescribe that the Chairman of the remuneration Committee of a listed entity shall
nomination and remuneration be an Independent Director.
Committee shall be an Independent
Director.
Lesson 15 • Board Constitution and its Powers 679
5 Role of the The Nomination and Remuneration The role of the nomination and remuneration
Nomination and Committee shall- ϐ
Remuneration (1) Identify persons who are the Schedule II of the SEBI(LODR) Regulation,
Committee ϐ 2015.
and who may be appointed in
senior management in
accordance with the criteria
laid down.
(2) Recommend to the Board their
appointment and removal.
(3) Specify the manner for effective
evaluation of performance of
Board, its Committees and
individual Directors.
(4) Formulate the criteria for
ϐ ǡ
positive attributes and
independence of a Director and
(5) Recommend to the Board a
policy, relating to the
remuneration for the Directors,
key managerial personnel and
other employees.
6 Frequency of The Companies Act 2013 does not The nomination and remuneration Committee
the Meeting provide for frequency of meeting of shall meet at least once in a year.
the nomination and remuneration
Committee.
As per SS-1, Committees shall meet
as often as necessary subject to the
minimum number and frequency
prescribed by any law or any
authority or as stipulated by the
Board.
7 Quorum The Companies Act 2013 does not The quorum for a meeting of the nomination
provide for Quorum for nomination and remuneration Committee shall be either
and remuneration Committee two members or one third of the members of
meeting. the Committee, whichever is greater, including
As per SS-1, the quorum for Meetings at least one Independent Director in attendance.
of any Committee constituted by the
ϐ
Board. If no such Quorum is
ϐǡ
members of any such Committee is
necessary to form the Quorum.
680 Lesson 15 • EP-CL
Illustration:
• RST Ltd. recently issued the Equity Shares on basis of right issue. Due to this, the paid-up capital of the
Company has been increased from Rs.7.5 crore to Rs.15 crore. The Company Secretary in the Board
Meeting put up the proposal for constitution of various committees including Audit Committee and
Nomination & Remuneration Committee. All members of the Committee were proposed to be Independent
Directors. In the scope of Nomination & Remuneration Committee, it was inter-alia added that the
Committee shall also evaluate the performance of Chairman & Managing Director (CMD) of the company.
The Directors present in the Board meeting strictly objected on the said proposal. CMD has also expressed
dissent on the proposal.
In view of this, check the validity of the proposal of the Company Secretary.
• Logical Solutions Ltd., a listed company, is having a Corporate Social Responsibility (CSR) committee
constituted with the following members :
ȄǦ Ƭ
Sohan — Non-executive director
Mohan — Independent director
Can company constitute a Nomination and Remuneration committee consisting of same three members of CSR
ǫ
Meetings/Quorum
• As per SS-1, Stakeholders Relationship Committees shall meet as often as necessary subject to the minimum
number and frequency prescribed by any law or any authority or as stipulated by the Board.
• A member of the Committee appointed by the Board or elected by the Committee as Chairman of the
Committee, in accordance with the Act or any other law or the Articles, shall conduct the Meetings of the
Committee. If no Chairman has been so elected or if the elected Chairman is unable to attend the Meeting, the
Committee shall elect one of its members present to chair and conduct the Meeting of the Committee, unless
otherwise provided in the Articles.
Lesson 15 • Board Constitution and its Powers 681
• Section 178(7) stipulates that the chairperson of the committee or, in his absence, any other member of the
committee authorised by him in this behalf shall attend the general meetings of the company.
• Quorum for Stakeholders Relationship Committee meeting – As per SS-1, the quorum for meetings of the
ϐǤ ϐǡ
presence of all the members of any such committee is necessary to form the Quorum. Regulations framed under
any other law may contain provisions for the quorum of a committee and such stipulations shall be followed.
Under the SEBI (LODR) Regulations, 2015
• The Stakeholders Relationship Committee shall meet at least once in a year.
• The Chairperson of the Stakeholders Relationship Committee is mandatorily required to be present at the
Annual General Meetings to answer queries of the security holders.
Comparison table of Stakeholders Relationship Committee under Companies act 2013 and the
SEBI (LODR) Regulations, 2015
S. Category The Companies Act, 2013 The SEBI (LODR) Regulations, 2015
NO.
1 Section Section 178(5) of the Companies Act,2013 Regulation 20 of the SEBI (LODR)
deals with Stakeholders Relationship Regulations,2015 deals with Stakeholders
Committee. Relationship Committee.
2 Applicability Company which consists of more than one Listed entity even if having less than 1000
thousand shareholders, debenture- debenture holders/security holders is
holders, deposit-holders and any other required to constitute a Stakeholders
security holders at any time during a Relationship Committee.
ϐ
Stakeholders Relationship Committee.
3 Members As may be decided by the Board. The Board of Directors shall constitute the
Stakeholders Relationship Committee as
follows:
(a) At least three Directors, with at
least one being an Independent
Director, shall be members of the
Committee;
(b) In case of a listed entity having
outstanding SR equity shares, at
least two thirds of the Stakeholders
Relationship Committee shall
comprise of Independent Directors.
682 Lesson 15 • EP-CL
5 Role of the The Stakeholders Relationship Committee The role of the Stakeholders Relationship
Stakeholders shall consider and resolve the grievances ϐ
Relationship of security holders of the company. D of the Schedule II of the SEBI (LODR)
Committee Regulations, 2015.
6 Frequency of The Companies Act 2013 does not provide The Stakeholders Relationship Committee
the Meeting for Frequency of meeting of the shall meet at least once in a year.
Stakeholders Relationship Committee.
As per SS-1, Committees shall meet as
often as necessary subject to the minimum
number and frequency prescribed by any
law or any authority or as stipulated by
the Board.
Illustration:
• Tempest Ltd., an unlisted company, has 500 shareholders, 400 debenture holders and 200 deposit holders.
As a Company Secretary of the Company Advise the Board, if the Company is required to form a
ǯ ǫ
committee.
• Examining the provisions of the Companies Act, 2013, relating to the constitution of a ‘Nomination and
Remuneration Committee’ and ‘Stakeholders Relationship Committee’, answer the following :
ȋȌ ǫ
mandatory for a non-listed public company having paid-up share capital of Rs.5 crore to constitute
ǫ
ȋȌ
ǫ
A Risk Management Committee fosters an integrated, enterprise-wide approach to identify and manage risk and
provides an impetus toward improving the quality of risk reporting and monitoring, both for management and the
Board.
In addition to the requirement of the Companies Act 2013 as well as the SEBI (LODR) Regulations, 2015, the audit
ϐ Ǥ
Lesson 15 • Board Constitution and its Powers 683
Meetings/Quorum
• The risk management committee shall meet at least twice in a year.
• The quorum for a meeting of the Risk Management Committee shall be either two members or one-third of
the members of the committee, whichever is higher, including at least one member of the board of directors
in attendance.
• The meetings of the risk management committee shall be conducted in such a manner that on a continuous
basis not more than 180 days shall elapse between any two consecutive meetings.
Provisions for Risk Management under Companies Act, 2013 and SEBI (LODR) Regulations,
2015
• A private company having only 2 directors on its Board shall constitute its CSR Committee with two such
directors.
• ǡ ʹ
ϐ ȋȌǦ ȋͳȌ ͵ͺͲ of the Companies Act, 2013 and
another person shall be nominated by the foreign company.
Meetings/Quorum
• As per SS-1 , the committee shall meet as often as necessary subject to the minimum number and frequency
prescribed by any law or any authority or as stipulated by the Board.
• A member of the Committee appointed by the Board or elected by the Committee as Chairman of the
Committee, in accordance with the Act or any other law or the Articles, shall conduct the Meetings of the
Committee. If no Chairman has been so elected or if the elected Chairman is unable to attend the Meeting, the
Committee shall elect one of its members present to chair and conduct the Meeting of the Committee, unless
otherwise provided in the Articles.
• Quorum of CSR Committee- the Quorum for Meetings of the Committee constituted by the Board shall be as
ϐǤ ϐǡ
is necessary to form the Quorum.
Illustration:
ǡ ǫ
Lesson 15 • Board Constitution and its Powers 687
CONCLUSION
Board Committees are the pillars of Corporate Governance. As the responsibilities of directors have become more
demanding, Boards have increasingly formed committees to deal with some of their more detailed work. As the
needs of the Board change, the need for committees may also change. Hence, it is essential that committees and
their role be subject to periodic review. Board members should be aware that Board responsibilities remain, when
serving on a Board committee, and may be enhanced. To be more effective, Board committees should have the
appropriate balance of skills, experience, independence and knowledge of the company to enable them to discharge
their respective duties and responsibilities effectively.
ǡ ϐ
directions. The work of the committees should be directed by the Board. Board committees should have their own
charter setting out their roles and responsibilities, for example, in the area of membership (including succession
planning), meeting frequency and core agenda, committee authority, reporting obligations etc. committees should
be appropriately constituted, taking into account any relevant legislation and the objectives of the company. Day by
day, the role of independent director is gaining importance in the effect functioning of the Board committees. Board
committees with formally established terms of reference, criteria for appointment, life span, role and function
constitute an important element of the governance process and should be established with clearly agreed reporting
procedures and a written scope of authority. Board committees should be free to take independent outside
professional advice when necessary, at the cost of the company, subject to a proper process being followed.
ǧ
• Every Listed Company and such other company as may be prescribed shall form an Audit Committee
comprising of minimum 3 directors with majority of them being Independent Directors and majority of
ϐ Ǥ
• Vigil mechanism to be established in the prescribed manner by every listed company or such class or
classes of companies, as may be prescribed.
• Every listed public company and prescribed class or classes of companies, shall constitute the Nomination
and Remuneration Committee consisting of three or more non-executive Directors out of which not less
than one half shall be Independent Directors.
GLOSSARY
TEST YOURSELF
ȋ ǤȌǤ
ͳǤ ǡ
ǫ
ʹǤ ǫ
͵Ǥ Ƭǫ
ͶǤ ǫ
ͷǤ ǫ
6. The AOA of XYZ Ltd. Provide that the maximum number of Directors in the Company shall be 10. Presently
the maximum number of directors is 8. The Board of Directors of the said Company desires to increase the
number to 16. Advise whether it can do so.
7. ABC Ltd. Is an unlisted public company having a paid-up capital of Rs. 25 Crore as on 31st March, 2020
and a turnover of Rs. 150 Crore. The total number of directors is 13.
(a) State the minimum number of independent directors that the company should appoint.
ȋȌ ǫ
Lesson Outline
• Introduction
• Procedure for Obtaining DIN
• Types of Directors
• Procedure of Appointment of Director
• ϐ
• ϐ
• Retirement and resignation of Directors
• Removal of Director
• Duties of Director
• Rights of Directors
• Loans to Directors
• Disclosure of Interest by Director
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
690 Lesson 16 • EP-CL
Regulatory Framework
The Companies Act, 2013
Sections Deals with
Section 149 Company to have Board of Directors
Section 150 Manner of selection of Independent Directors and Maintenance of Databank of
Independent Directors
Section 151 Appointment of Directors elected by Small Shareholders
Section 152 Appointment of Directors
Section 153 ϐ
Section 154 ϐ
Section 155 ϐ
Section 156 ϐ
Section 157 ϐ
Section 158 ϐ
Section 159 Penalty for default of certain provisions
Section 160 Right of Persons other than Retiring Directors to stand for Directorship
Section 161 Appointment of Additional Director, Alternate Director and Nominee Director
Section 162 Appointment of Directors to be Voted Individually
Section 163 Option to Adopt Principle of Proportional Representation for Appointment of
Directors
Section 164 ϐ
Section 165 Number of Directorships
Section 166 Duties of Directors
Section 167 ϐ
Section 168 Resignation of Director
Section 169 Removal of Directors
Section 170 Register of Directors and Key Managerial Personnel and their shareholding
Section 171 Members’ Right to inspect
Section 184 r/w Rule 9 of The Disclosure of Interest by Director
Companies (Meetings of Board
and its Powers) Rules, 2014
Section 185 r/w Rule 10 of The Loans to Directors, etc.
Companies (Meetings of Board
and its Powers) Rules, 2014
ȋϐ ȌǡʹͲͳͶ
Deals with
Rule 3 Women Director on the Board
Rule 4 Number of Independent Directors
Rule 5 ϐ
Rule 6 Creation and Maintenance of Databank of Persons offering to become
Independent Directors
Lesson 16 • Directors 691
ǡǡϐ ǡ Ǥ
has no physical existence. It has neither soul nor body of its own. As such, it cannot act in its own person. It can do
so only through some human agency.
The persons who are in charge of the management of the affairs of a company are termed as Directors. They are
collectively known as Board of Directors or the Board. The directors are the brain of a company. They occupy a
pivotal position in the structure of the company. Directors take the decision regarding the management of a company
collectively in their meetings known as Board Meetings or at the meetings of their committees constituted for
ϐ Ǥ
ʹͲͳ͵ ϐDz dzǤ ʹȋ͵ͶȌ
Dz dz
As per Section 149 of the Companies Act, 2013, the Board of Directors of every company shall consist of individual
Ǥǡ ǡ ϐ Ǥ
ͳȋȌ ǡʹͲͳ͵ǡϐ Ǥ
ϐ Ǥ ǯ
and money, and they also act as the agents in transactions which are entered into by them on behalf of the company.
ǤǦϐ
ϐ ȋ Ȍ Ǥ ǡ
DIN is allocated only to a person who has attained the age of 18 years. Thus, Minor is not eligible to apply for DIN
and does not, therefore, qualify to hold the position of Director. The position of a Director with the company is also
on the basis of a contract. A contract can be entered into by a major as such only those persons who have attained
the age of 18 years can be appointed as Directors.
ǯ ϐȀϐ ǤȀǤȀȀ Ǥ
with applicant’s name or applicant’s father’s name in E-Form DIR-3.
ǡ ϐ
Number (PAN) card, in case of Indian National and as per Passport in case of Foreign
National. The Spelling of applicant’s name and applicant’s father’s name shall be exact
in all cases.
Prepare a declaration in Form DIR-3A, in case the applicant has no surname after his/
Ǧ͵ ϐ Ǧ͵Ȁǯǯ
surname in DIR-3.
However, in case of father’s name of the applicant, if only single word name of father
is written on the PAN of an Indian National, the single name can be accepted by MCA
in DIR-3 in respect of Father’s Name.
Note: Even married woman shall give her father’s name in DIR-3. Further, in case of
foreign nationals, proof regarding father’s name is not required.
Arrange a Board Meeting of the existing company in which the DIN applicant is
proposed/intended to be appointed as Director.
694 Lesson 16 • EP-CL
Upon upload of DIN application, payment of fees can be made only through electronic
mode (i.e. Net banking / Credit Card/Debit Card/Pay later/ NEFT).
Lesson 16 • Directors 695
• On the submission of the Form DIR-3 on the portal and payment of the requisite
amount of fees through online mode an application number shall be generated by
the system automatically.
• After generation of application number, the Central Government shall process the
applications received for allotment of DIN, decide on the approval or rejection
thereof and communicate the same to the applicant along with the DIN allotted in
case of approval by way of a letter by post or electronically or in any other mode,
within a period of 1 month from the receipt of such application.
• ǡǡϐ
or incomplete in any respect, it shall give intimation of such defect or
incompleteness, by placing it on the website and by email to the applicant who
ϐ ǡ
incompleteness by resubmitting the application within a period of 15 days of
such placing on the website and email:
The Central Government shall -
ȋȌ ϐ
ǡ ϐ
the information given is still found to be defective;
(b) treat and label such application as invalid in the electronic record in case the
defects are not removed within the given time; and
(c) inform the applicant either by way of letter by post or electronically or in any
other mode.
• In case of rejection or invalidation of application, the fee so paid with the
application shall neither be refunded nor adjusted with any other application.
ϐ ϐ
ϐ ǡ
requirement of this section shall not apply or apply in such manner as may be prescribed.
ϐ ȏ ͳʹ
ȋϐ ȌǡʹͲͳͶȐ
(1) Every individual who has been allotted a DIN in the
event of any change in his particulars as stated in Form Key point to remember
DIR-3, intimate such change(s) to the Central • Changes to be submitted in form DIR-6 within 30
Government within a period of 30 days of such change(s) days.
in Form Ǧ (Intimation of change in particulars of
Director to be given to the Central Government). The • Attach scanned copy of the proof of changed
ϐ Ǧǡ particulars.
verify the form and attach duly scanned copy of the Ȉ Ǧϔ
proof of the changed particulars and submit practice.
Ǥ Ǧ ϐ • Intimation to the company in which he is director
professional CA/CS/CMA in practice. within 15 days of such change.
ȋʹȌ ǡϐǡ
ϐ ǡ
ϐ
electronic database maintained by the Ministry.
The DIN cell of the MCA shall also intimate the change(s) in the particulars of the director submitted to it in Form
Ǧ ȋȌ ϐ ȋȌ
individual is a director is situated.
(3) The concerned individual shall also intimate the change(s) in his particulars to the company or companies in
ϐ Ǥ
ȀȀ ȏ ͳͳ ȋ
ϐ ȌǡʹͲͳͶȐ
ȋ ȀȋȌǡȀϐ Ȍǡ
ϐϐ ϐ
received from any person, cancel or deactivate the DIN in case –
(a) the DIN is found to be duplicated in respect of the same person provided the data related to both the DIN shall
be merged with the validly retained number;
(b) the DIN was obtained in a wrongful manner or by fraudulent means;
(c) of the death of the concerned individual;
(d) the concerned individual has been declared as a person of unsound mind by a competent Court;
(e) if the concerned individual has been adjudicated an insolvent.
Provided that before cancellation or deactivation of DIN pursuant to clause (b), an opportunity of being heard
shall be given to the concerned individual;
Lesson 16 • Directors 697
(f) on an application made in Ǧͷby the DIN holder to surrender his or her DIN along with declaration
ϐ
ǡ ϐ
of e-records.
Once a person is appointed as a Director in any company as per the Companies Act 2013, he cannot relinquish his
DIN in the future. Even if he/she doesn’t remain a director anymore in that company or in any other company, his/
her DIN will exist as it is.
ϐǦ Ǧ͵ or Ǧ Ǧ͵Ǧ through the web service, as the
ǡȋϐ ȌǡʹͲͳͶǤ
Purpose
DIR-3 ϐ
existing company
DIR-6 Intimation of change in particulars of Director to be given to the Central Government
DIR-3 B Intimation of DIN to Company (By every director, functioning as a director in one or more
͵Ͳ ǡʹͲͲƬ Ȍ
DIR-3 C ϐ
A director to the Board may be appointed as
• First Director
• Resident Director
• Women Director
• Independent Director
• Alternate Director
• Additional Director
• Small Shareholder Director
• Nominee Director
• Casual Vacancy
• Professional Director
Section 152 of the Act provides that where there is no provision made in Articles of Association of the company for
ϐ
ϐ Ǥ ͳͷʹȋͳȌ
all companies, whether public or private.
Lesson 16 • Directors 699
In case of a One Person Company an individual being member shall be deemed to be its first director until
the director or directors are duly appointed by the member in accordance with the provisions of this section.
Section 149(3) provides that every company shall have at least one director who has stayed in India for a total
Ǧϐ ǣ
However, in case of a newly incorporated company the requirement under this sub-section shall apply proportionately
ϐ Ǥ
ͳͶͻȋ͵Ȍ ϐ Ȁ ϐ ϐ
ϐϐ ǤǦϔ ͺ Ͷͷ
ͳͶͻȋͳȌ͵ȋϐ Ȍ
Rules, 2014, following class of companies must have at least one Women Director:
(a) All Listed Companies
(a) Public companies:
• with paid up capital of Rs. 100 crore or more or
• with turnover of Rs. 300 crore or more.
Additionally for listed entities, the Board of directors of the top 500 listed entities shall have at least one
independent woman director by April 1, 2019 and the Board of directors of the top 1000 listed entities shall
have at least one independent woman director by April 1, 2020.
The top 500 and 1000 entities shall be determined on the basis of market capitalisation, as at the end of the
ϐ Ǥ
Here, the ‘nominal value’ of shares is relevant. It does not matter how much is the ‘paid up value’ or ‘market value’
of shares. However, a small shareholder may be a holder of equity shares or preference shares or both.
For example: Mr. A holds 5000 equity shares of Rs. 10 each (Rs. 4 paid up) in XYZ Ltd. However, Mr. A cannot be
considered as small shareholder since the nominal value of shares held by him (i.e. Rs. 50,000) exceeds Rs. 20,000.
Ƭǯ
ȋϐ ȌǡʹͲͳͶ
and conditions for appointment of small shareholders’ director, which are as under:
(i) Election of small shareholders’ director:
A listed company, may upon notice of not less than
(a) One thousand small shareholders; or
(b) One-tenth of the total number of such shareholders,
whichever is lower; have a small shareholders’ director elected by the small shareholder.
700 Lesson 16 • EP-CL
A ‘Small Shareholder’s Director’ may be elected voluntarily by any listed company. Thus, a listed company, may, on
its own, act to appoint a Small Shareholder’s Director. In such a case, no notice from small shareholder(s) is required.
(ii) Notice of intention to propose a candidate:
The small shareholders intending to propose a person as a candidate for the post of small shareholder’s director
shall leave a signed notice of their intention with the company at least 14 days before the meeting under their
signatures specifying their details and proposed director’s details and of the small shareholders who are proposing
ϐ Ǥ ǡǡ Ǥ
ǡ ϐ
in the notice.
(iii) Statement by the proposed small shareholders’ director:
The notice shall be accompanied by a statement signed by the proposed director for the post of small shareholders’
director stating
ȋȌ ϐ Ǣ
ȋȌ ϐ Ǣ
(c) his consent to act as a director of the company.
(iv) Small shareholders’ director to be an independent director:
Small shareholders’ director shall be considered as an independent director, if-
(a) he is eligible for appointment as an independent director as per sub-section (6) of section 149; and
(b) he gives a declaration of his independence as per sub-section (7) of section 149.
ȋȌϔ ǣ
The tenure of small shareholders’ director shall not exceed a period of 3 consecutive years and he shall not be liable
to retire by rotation. Further he shall not be eligible for re-appointment after the expiry of his tenure.
ȋȌ ϔ ǣ
ϐ ǯ ϐ
164 of the Act.
ȋȌ ϔ ǣǯ ϔ Ǧ
(a) he ceases to be a small shareholder, on and from the date of cessation;
ȋȌ ϐ ϐ ͳͶǢ
ȋ Ȍ ϐ ͳǢ
(d) he ceases to meet the criteria of independence as provided in section 149 (6).
(viii) Number of small shareholders’ directorship:
ϐ ǯ Ǥ
Provided that the second company in which he has been appointed shall not be in a business which is competing or
ϐ ϐ Ǥ
(ix) No association with the company for next 3 years:
ǯ ǡ ϐ
as a small shareholders’ director in a company, be appointed in or be associated with such company in any other
capacity, either directly or indirectly.
Lesson 16 • Directors 701
ǣ
a) A small shareholders’ director may be removed by passing an ordinary resolution in the general meeting
in accordance with the provisions of section 169 of the Act. At the time of voting on such resolution, every
equity shareholder shall have a right to vote irrespective of the fact as to whether he is a small shareholder
or not.
b) A small shareholders’ director shall be included in the ‘total number of directors’ as prescribed under
section 152 (6) of the Act.
ͳͶͻȋͶȌ Ͷ ȋ ϐ Ȍ ǡ ʹͲͳͶ
ϐ Ǥ
Explanation.- ǡ ϐ ǡ
ǡǡ ǡϐ
statements shall be taken into account.
Provided that a company belonging to any class of companies for which a higher number of independent directors
ϐ ϐ Ǥ
However, the following classes of unlisted public company is not required to appoint Independent Director:
(a) a joint venture;
(b) a wholly owned subsidiary; and
ȋ Ȍ ϐ Ͷͷͷ Ǥ
In case a company covered under this rule is required to appoint higher number of independents directors due to
composition of its audit committee and then they shall appoint such higher number of independent directors.
ϐ
directors at the earliest but not later than immediate next Board meeting or three months from the date of such
vacancy, whichever is later.
Once the company covered under above sub-rule (i) to (iii) of Rule 4 of the Companies (Appointment and
ϐ ȌǡʹͲͳͶǡ ϐ
shall not be required to comply these provisions until such time as it meets any of such conditions.
Ǧ ȋͺȌ ͷͺͿ ; ǡ
public company which is licensed to operate by the RBI or the SEBI or the IRDAI from the International Financial
Services Centre located in an approved multi services Special Economic Zone set-up under the Special Economic Zones
ȋȌ ǡͶͶͻͶͶͼǤ
702 Lesson 16 • EP-CL
Directors
to the company, its holding, subsidiary or associate company or their promoters, or directors of such
holding company, for such amount as may be prescribed during the two immediately preceding
ϐ ϐ Ǣ
(iv) has any other pecuniary transaction or relationship with the company, or its subsidiary, or its holding
or associate company amounting to two per cent. or more of its gross turnover or total income singly
or in combination with the transactions referred to in sub-clause (i), (ii) or (iii).
(e) He must not either directly or any of his relatives
(i) hold or has held the position of a key managerial personnel or is or has been employee of the company
ǡ ϐ
ϐ Ǣ
Provided that in case of a relative who is an employee, the restriction under this clause shall not apply
ϐ Ǥ
ȋȌ ǡϐ
ϐ ǡȂ
ȋȌ ϐ
holding, subsidiary or associate company; or
ȋȌ ϐ ǡǡ
subsidiary or associate company amounting to ten per cent. or more of the gross turnover of
ϐǢ
(iii) holds together with his relatives two per cent or more of the total voting power of the company; or
ȋȌ ǡ ǡǦϐ
25% or more of its receipts from the company, any of its promoters, directors or its holding, subsidiary
or associate company or that holds 2% or more of the total voting power of the company; or
ȋȌ ϐ ͷ ȋ
ϐ ȌǡʹͲͳͶ ǡ
ϐϐ ǡǡǡǡǡǡ ǡ
corporate governance, technical operations or other disciplines related to the company’s business.
None of the relatives of an independent director, for the purposes of sub-clauses (ii) and (iii) of clause of sub-
section (6) of section 149:
(i) is indebted to the company, its holding, subsidiary or associate company or their promoters, or
directors ; or
(ii) has given a guarantee or provided any security in connection with the indebtedness of any third person
to the company, its holding, subsidiary or associate company or their promoters, or directors of such
ǡϐǡ
ϐ ϐ Ǥ
Who, neither himself nor any of his relatives holds Who, either himself or any of his relatives who is or has
position of KMP. been an employee or proprietor or a partner of Audit
ϐ ǡ
ϐȀ ϐ
had any transaction with the company, its holding,
subsidiary or associate company amounting to ten
percent or more of the gross turnover of the company, in
ϐ
ϐ Ǥ
ϐ Who, either himself or any of his relatives who holds
prescribed. together with his relatives two per cent or more of the
total voting power of the company.
Who, either himself or any of his relatives who is or has
been an employee of the Company or its holding,
subsidiary or associate company*, in any of the three
ϐ ϐ
of his appointment.
In case of Government company – clause (c) of Section 149(6) shall not apply i.e. no such restriction levied on
Government Company related to Pecuniary relationship of Independent DirectorǦϔ ͻ ǡͶͷͻǤ
Exemptions:
ͺ ϐ ͲͷǡʹͲͳͷ ϐ
ϐ Ͷ ʹͲͳ ͳͶͻȋͶȌ ȋͳͳȌǡ ͳͶͻ (i) and
ͳͶͻȋͳ͵ȌǤ ǡϐ
ͺ ϐ
public companies.
Ȁ
According to Section 149(9), the independent director is entitled to receive:
(a) sitting fee for Board/Committee meetings as may be prescribed under second proviso of Section 197(5)
(b) sitting fee to a director for attending meetings of the Board or committees thereof, such sum as may be
decided by the Board of directors thereof shall not exceed one lakh rupees per meeting of the Board or
committee thereof.
(c) If a company has no profits or its profits are inadequate, an independent director may receive remuneration,
exclusive of any fees payable under sub-section (5) of section 197, in accordance with the provisions
of Schedule V of the Companies Act, 2013.
(1) (2)
ȋ ȋ
ǤǤ Ȍ Ȍ
(i) Negative or less than 5 crores. 12 lakhs
5 crores and above but less than 100 17 lakhs
(ii) crores.
100 crores and above but less than 250 24 lakhs
(iii) crores.
250 crores and above. 24 Lakhs plus 0.01% of the effective capital in excess of
(iv) Rs.250 crores
The remuneration in excess of above Iimits may be paid if the resolution passed by the shareholders is a special
resolution.
Additional Director
Section 161(1) of the Companies Act, 2013, provides that the articles of a company may confer on its Board of
Directors the power to appoint any person, other than a person who fails to get appointed as a director in a general
ǡ ϐ
or the last date on which the annual general meeting should have been held, whichever is earlier.
ǡ ϐ
which the annual general meeting ought to held. A person who fails to get appointed as a director in a general
meeting cannot be appointed as Additional Director. Section 161(1) of the Act applies to all companies, whether
public or private.
Alternate Director
Section 161(2) of the Act empowers the Board, if so authorized by its articles or by a resolution passed by the
company in general meeting, to appoint a person, not being a person holding any alternate directorship for any
Lesson 16 • Directors 709
other director in the company or holding directorship in the same company, to act as an alternate director for a
director during his absence for a period of not less than three months from India.
The provisions applicable to an alternate director are as follows:
ȋȌ ǣ
Section 161(2) of the Act applies to all companies, whether public or private.
(ii) Conditions for appointment of an alternate director:
(a) The Board of Directors of a company must be authorised by its articles or by a resolution passed by the
company in general meeting for appointment of the alternate director.
(b) The person in whose place the Alternate Director is being appointed should be absent for a period of not less
than 3 months from India.
(c) The person to be appointed as the Alternate Director shall be the person other than the person holding any
alternate directorship for any other Director in the company or holding directorship in the same company.
(d) If it is proposed to appoint an Alternate Director to an Independent Director, it must be ensured that the
ϐ ͳͶͻȋȌ Ǥ
(iii) Power to appoint:
The Board may appoint an alternate director only if it is authorized by the articles or by an ordinary resolution
passed at a general meeting. The right to appoint an alternate director vests in the Board. The original director
has no right to appoint an alternate director. The members have no right to appoint an alternate director, the
ϐǤ
(iv) Method of appointment:
There is no condition that an alternate director shall be appointed only by passing a resolution at a Board
meeting. Therefore, an alternate director can be appointed by passing a resolution by circulation.
ȋȌϔ ǣ
ȋȌ ǣ ϐ
a period longer than that permissible to the director in whose place he has been appointed. If the
ϐ ͳǡ
ϐ Ǥ
ȋȌ ϐ
appointed returns to India.
ȋȌ ǣ
ϔ ǡ
ͷͻȋͽȌȋȌ ǡ
to the alternate director.
ϐ ͳǡʹͲͳͺ
an alternate director for an independent director of a listed entity.
As per section 165, an alternate directorship in a company shall also be included while counting the number of
directorships held by a director.
Section 161(3) of the Companies Act, 2013, provides that subject to the articles of a company, the Board may appoint
any person as a director nominated by any institution in pursuance of the provisions of any law for the time being
in force or of any agreement or by the Central Government or the State Government by virtue of its shareholding in
a Government company.
710 Lesson 16 • EP-CL
Dz dzϐ ǡʹͲͳ͵Ǥ ǡǦ
(4) of Section 197 of the Companies Act, 2013 has reference to professional services by a director. Section 200 has
ϐ Ǥ
ϐDzdz
Ǥ ǡ ϐ
contribute in decision making of the board may be appointed as professional director. For example, a doctor may be
a professional director in a hospital company.
ͳͳȋͶȌǡϐ
ϐ ǡ ǡ
ǡϐ
Ǥϐ
ǡϐ
Ǥ ϐ ǡ
ϐ Ǥ
Ȁ ǡ ǡ ǡ ǡ
ǡ
Further it has been provided that a person shall not serve as an independent director in more than seven
listed entities.
(2) Notwithstanding the above, any person who is serving as a whole time director / managing director in any
listed entity shall serve as an independent director in not more than three listed entities.
For the purpose of this regulation, the count for he number of listed entities on which a person is a director/
independent director shall be only those whose equity shares are listed on a stock exchange.
In case of section 8 company – Section 165 (1) related to maximum number of directorship shall not apply -
ϔ ͻ ǡͶͷͻǤ
Case Law:
ǡȋȌǤȋȌ
ȋȌǤͷͶͷͿǡͺȀͶͼȀͶͶǡȋȌȋȌ
Ǧ
The Respondent was the Director, for more than 20 Companies till 31.03.2015. The Respondent tendered his
resignation as the Director of the Company M/s Fabius Properties Pvt. Ltd. The same was accepted by the Board
of Directors of the Companies on 29.12.2015.However, the intimation of his resignation was sent to the Registrar
of Companies vide Form DIR-12 on 10.02.2016.
The Respondent has violated the provisions under Section 165(1) read with Section 165(3) of the Companies
Act, 2013 which is punishable under Section 165(6) of the Act, The NCLT, Kolkata bench has imposed
compounding fees of Rs. 50,000/- which is less than minimum fees prescribed under Section 165(6) of the
Companies Act, 2013.
The issue for consideration is, whether Tribunal can impose the compounding fees under Section 441 (1) of the
ǡʹͲͳ͵ǡ ϐ ͳͷȋͳȌ
165(6) of the Companies Act, 2013?
ǡ ϐ Ǧ
Section 6 of Section 165 of the Companies Act, 2013 which was applicable at relevant time.
The Respondent has contravened the provisions of 165(1) of the Companies Act, 2013 which is punishable
under Sub-Section 6 of Section 165 of the Companies Act, 2013. Taking into consideration, the facts and
ǡϐϐ
ͲͳǤͲͶǤʹͲͳͷʹͳǤͲʹǤʹͲͳǤǤʹʹǤϐǤͳ͵ǡͲǡͲͲͲȀǦ
The Respondent has already paid Rs. 50,000/- after adjustment, now he is liable to pay Rs. 13,10,000/- Therefore,
The Respondent is directed to pay such amount within a period of 60 days in National Company Law Tribunal,
Kolkata.
712 Lesson 16 • EP-CL
Director
Alternate Director
u/s 161
Ǥ
ϐ
memorandum who are
ϐ
ϐ ȋȌ
Ǥ
Lesson 16 • Directors 713
3. The explanatory statement attached to the notice of the meeting for approving the appointment of independent
director shall include a statement that in the opinion of the Board, the independent director proposed to be
ϐ ϐ
Ǥ ϐ
for appointment as Independent Director.
4. Section 178(3) of the Act provides that the Nomination and Remuneration Committee (NRC) shall formulate
ϐ ǡ Ǥ
In addition, the Listing Regulations provide that the NRC should recommend to the Board of Directors a
policy relating to the remuneration of the directors, key managerial personnel and other employees. The
Listing Regulations (Part D of Schedule II read with regulation 19(4)) cast a responsibility on the NRC to
ϐ
accordance with the criteria laid down, and recommend to the Board of Directors their appointment and
Ǥ ϐ
ϐ ǡ
and recommend to the Board of Directors a policy relating to the remuneration of the directors, key managerial
personnel and other employees.
In addition, the NRC to decide whether to extend or continue the term by way of re-appointment of the
independent director, on the basis of performance evaluation report of independent directors.
5. The appointment of independent directors shall be formalized through a letter of appointment, which shall set
out:
(a) The term of appointment;
(b) The expectation of the Board from the appointed director; the Board-level committee(s) in which the
director is expected to serve and its tasks;
ȋ Ȍ ϐ Ǣ
ȋȌ ϐ ȋȌ ǡǢ
(e) The Code of Business Ethics that the company expects its directors and employees to follow;
(f) The list of actions that a director should not do while functioning as such in the company; and
(g) The remuneration, mentioning periodic fees, reimbursement of expenses for participation in the
ϐ ǡǤ
6. The terms and conditions of appointment of independent directors shall be open for inspection at the
ϐ Ǥ
7. The terms and conditions of appointment of independent directors shall also be posted on the company’s
website.
ͺǤ ϐ ͷ Ǥȏ ͳͶͻȋͳͲȌȐ
(2) Any individual, including an individual not having DIN, may voluntarily apply to the institute for inclusion of
his name in the data bank.
ȋ͵Ȍ ϐ
ϐǦǡ
expiry of the period upto which the name of the individual was applied for inclusion in the data bank, failing
which, the name of such individual shall stand removed from the data bank of the institute.
ȋͶȌ ϐǦ
in the data bank.
(5) Every independent director shall submit a declaration of compliance relating to eligibility and registration
with IICA databank to the Board, each time he submits the declaration required under sub-section (7) of
section 149 of the Act.
ȋȌ ϐ Ǧ
test conducted by the institute within a period of two years from the date of inclusion of his name in the data
bank, failing which, his name shall stand removed from the databank of the institute.
ȋȌ ϐ Ǥϐ
self-assessment test shall be deemed to have passed such test.
ȋͺȌ ϐ
self-assessment test.
718 Lesson 16 • EP-CL
ϐ ǯ
ǣ
ϐ Ǧ
total period of not less than three years as on the date of inclusion of his name in the data bank,-
(A) as a director or key managerial personnel, as on the date of inclusion of his name in the databank, in one or
more of the following, namely:-
(a) listed public company; or
(b) unlisted public company having a paid-up share capital of rupees ten crore or more; or
(c) body corporate listed on any recognized stock exchange or in a country which is a member State of the
Financial Action Task Force on Money Laundering and the regulator of the securities market in such
member State is a member of the International Organization of Securities Commissions; or
(d) bodies corporate incorporated outside India having a paid-up share capital of US$ 2 million or more; or
(e) statutory corporations set up under an Act of Parliament or any State Legislature carrying on commercial
activities; or
(B) in the pay scale of Director or equivalent or above in any Ministry or Department, of the Central Government
or any State Government, and having experience in handling,—
ȋȌ ǡ ǡϐ ǡ Ǣ
(ii) the affairs related to Government companies or statutory corporations set up under an Act of Parliament
or any State Act and carrying on commercial activities.
(C) in the pay scale of Chief General Manager or above in the Securities and Exchange Board or the Reserve Bank
of India or the Insurance Regulatory and Exchange Board or the Reserve Bank of India or the Insurance
Regulatory and Development Authority of India or the Pension Fund Regulatory and Development Authority
and having experience in handling the matters relating to corporate laws or securities laws or economic laws
ǡ ϐǡ
during which an individual was acting as a director or as a key managerial personnel in two or more companies
or bodies corporate or statutory corporations at the same time shall be counted only once.
Provided also that the following individuals, who are or have been, for at least ten years :—
(A) an advocate of a court, or
(B) in practice as a chartered accountant, or
(C) in practice as a cost accountant, or
(D) in practice as a company secretary,
ϐ ǦǤ
ȏ ͵
ȋ ȌǡʹͲͳͻȐ
1) The institute (IICA) shall create and maintain a databank of persons willing and eligible to be appointed as
independent directors, and such databank shall be an online databank which shall be placed on the website
of the institute.
2) The data bank referred to above shall contain the following details in respect of each person included in the
data bank to be eligible and willing to be appointed as independent director
ȋȌ ȋ ϐ Ȍǡ Ǣ
(b) Income Tax PAN;
(c) the name and surname in full;
Lesson 16 • Directors 719
If the shareholders’ approval by special resolution for his reappointment for second term is not taken as on the
ϐǡ Ǧ
director for second term, as he does not possess the eligibility to get re-appointed for second term and hence, he
ϐǤ
ǣ
ϐǫ
ǣ There is no restriction on appointment of an independent director by way of a circular resolution, if he is
to be appointed by the Board as an additional director. However, it must be ensured that Nomination and
Remuneration Committee of the company has duly discussed and recommended the candidate, before circulation
of Board resolution.
ǣ ϐ
ǫ
ǣ Whenever any existing independent director ceases to be a director of company either due to resignation,
death or otherwise, then in order to ensure the requisite Board composition, a new independent director should
be appointed. The Board can appoint an individual either as an additional director under section 161(1) of the
ϐ
ϐ ϐ Ǥ
ϐ ȋȌǡen
as per Section 161(4) read with Annexure A to the Secretarial Standard on Meetings of the Board of Directors
(SS-1), his appointment should be approved at a Board meeting and not through resolution by circulation. Such
appointment should also be approved by the members in the immediate next general meeting.
ǡ ͳͳȋͶȌ ǡ ϐ
ϐ ǡ
Ǥ ǡϐ ͷ
years, which he would have otherwise got if he had been appointed as an Additional Director.
ǣϐ Ǧ
ǫ
ǣ ͳͶͻȋͳͲȌ ǡ ϐ ϐ
years on the Board of a company, but shall be eligible for re-appointment on passing of a special resolution by
the company based on the recommendation of the Nomination and Remuneration Committee and Board of
Directors of the company and disclosure of such appointment shall be made in the Board’s Report. Since the
ϐ ϐ
ϐǤ ǡ Ȁ
ϐ Ǥ
ǣ ǡ
ǫ
ǣ Any individual who intends to get appointed as an independent director in a company shall before such
appointment shall register his name with the databank of independent directors.
• Before appointing a person as an additional director, his consent to act as director should be obtained.
• Check whether the additional director to be appointed in the board meeting has obtained Director
ϐ ȋ ȌǤ
ͳͷ͵ ϐ
Number to the Company.
• Rest the procedure for appointment remains the same.
(b) a subsidiary of a Government Company, referred to in (a) above, in which the entire paid up share capital is
held by that Government company.
ͳͶͻȋȌϐǡDz dz ϐ
pursuance of the provisions of any law for the time being in force, or of any agreement, or appointed by any
Government, or any other person to represent its interests. Nominee Director shall not be deemed to be independent
ͳͶͻȋȌǤȏ ͳͶͻȋȌ ϐ ϐ
Ͷ ʹͲͳȐ
ǡ ϐ ϐ ǡ ǡ ǡ
holders, etc. usually confer on their lenders, power to appoint and terminate the appointments of their nominees on their
Ǥ ϐ Ǥ
These institutions/banks etc. also insist on borrowing companies to alter their articles of association so as to
empower them to appoint and terminate the services of their nominee directors on the Board of the company as
and when they like. These directors are known as nominee directors. They are not liable to retire by rotation and
ϐ Ǥ Ǥ
Procedure to appoint a nominee director is same as appointment as additional director by the Board or appointment
of director other than retiring director by the company in general meeting. Depending upon the term and condition
of agreement with the appointing bank/institution/Government, the company may choose any of these two
methods.
11. Ensure that said Form is digitally signed by managing director or manager or secretary of the company and
ϐ
digitally signing it.
ͳʹǤ ϐ Ǧͳʹǡ ǣ
(a) Letter of appointment
ȋȌ ϐ
(c) Declaration of the appointee Director, in Form DIR-2;
(d) Interest in other entities;
13. In case of listed company, the particulars of appointment of director should also be given to the stock exchange
where the shares of the company are listed.
14. The particulars of the director and other aspects of the director have to be entered by the company in the
registers maintained under Sections 170 and 189.
15. After appointment the director concerned has to inform other companies in which he is director about his
appointment.
ϐ
Ǥϐ ǡ
ϐ ͳͶ ǡ ϐ
for appointment as a director.
Under section 169 of the Act, a company may, by ordinary resolution remove a director before the expiry of the
ϐ Ǥ ͳͻ
was appointed and notwithstanding anything contained in the articles of the company or any agreement with the
director concerned.
According to Section 169, a company may, by ordinary resolution, remove a director, not being a director appointed
ʹͶʹǡ ϐ
opportunity of being heard.
An independent director re-appointed for second term under sub-section (10) of section 149 shall be removed by
the company only by passing a special resolution and after giving him a reasonable opportunity of being heard.
The provision relating to removal shall not apply where the company has availed itself of the option to appoint not
less than two – thirds of the total number of directors according to the principle of proportional representation.
7. However, the National Company Law Tribunal on an application of the company or any other person who
ǡϐǡ
and reading thereof at the meeting if it is being used to secure needless publicity for defamatory matter.
8. In case of listed company, send notice of the general meeting to the stock exchange(s) within 24 hours of the
occurrence of the event where the company is listed [Refer regulation 30(6) of the SEBI (Listing Obligations
and Disclosure Requirements) Regulations, 2015].
9. Hold the general meeting and pass the proposed resolution by ordinary resolution.
10. In case of listed company, forward a copy of the proceedings of the meeting within 24 hours of the occurrence
of the event to the stock exchange(s) where the company is listed.
ͳͳǤ ϐiculars of director in Form DIR – 12 with the Registrar of Companies within thirty
days of the removal after paying the requisite fee electronically.
ϐ Ȃͳʹǡ ǣ
(a) Notice of resignation;
(b) Evidence of Cessation;
ϐ
by a Company Secretary or Chartered accountant or Cost accountant in Whole time practice by digitally signing it.
ͳʹǤ ϐ
registers maintained under Sections 170 and 189.
13. Give a general public notice in newspaper regarding removal of the director if it is so warranted for the
ϐ Ǥ
Where an application has been made to the National Company Law Tribunal under Section 241 of the Companies
Act 2013 for prevention of oppression or mismanagement and the Tribunal has conducted its proceedings on the
application, it has the power under Section 242(2)(h) of the Act, to remove any director.
Case Law:
Ǥ ȋ Ȍ
ǣͲʹ ǡʹͲͳͻ
Section 167(1)(a) Companies Act not violative of Articles 14, and 19(1)(g) of the Constitution of India.
The issue raised was that the Section 167(1)(a) of the Companies Act 2013, as inserted vide the Companies
(Amendment) Act 2017 as ultra vires the Articles 14, 19(1)(g) of the Constitution of India.
ͳ ϐ Ǥ
which is under challenge in the instant writ petition states that, when a company commits a default as stipulated
in sub-section 2 of Section 164, then a Director of such defaulting company does not vacate the post in the
company in which the default is committed but a Director of such a company has to vacate his seat as a Director
in all other companies in which he is Director. The petitioner contends that proviso to Section 167(1)(a) of the
Companies Act, leads to unequal treatment being met out to Directors of a defaulting company based on whether
they are Directors in other companies or not. The petitioner claims that this leads to unfair treatment to those
Directors who hold such posts in multiple companies.
Dz
provision (as it was) then, this post would remain vacant as these provisions would automatically apply to any
dzǤ
The Court has held that the proviso to Section 167(1)(a) must be interpreted in ordinary terms and would apply
ͳͶ Ǧ ʹǤ ϐ
on two grounds. Firstly, it has been reiterated that the exclusion of Directors from vacating their posts in the
defaulting company while doing so in all other companies where they hold Directorship has been done in order
to prevent the anomalous situation wherein the post of Director in a company remains vacant in perpetuity
owing to automatic application of Section 167(1)(a) to all newly appointed Directors. Secondly, the underlying
object behind the proviso to Section 167(1)(a) is seen to be the same as that of Section 164(2) both of which
ǡϐ ǡ
holds that the proviso to Section 167(1)(a) is neither manifestly arbitrary nor does it offend any of the
fundamental rights guaranteed under Part III of the Constitution of India.
728 Lesson 16 • EP-CL
The duties of directors as contained in section 166 of the Companies Act, 2013 are described as follows:
ͷǤ
The director of a company shall act in accordance with the articles of the company.
Ǥ
ϐ
members as a whole, and in the best interests of the company, its employees, the shareholders, the community and
for the protection of environment.
Ǥ
A director of a company shall exercise his duties with due and reasonable care, skill and diligence and shall exercise
independent judgment.
ͺǤ ϔ
A director of a company shall not involve in a situation in which he may have a direct or indirect interest that
ϐ ǡ ϐ ǡ Ǥ
ͻǤ
A director of a company shall not achieve or attempt to achieve any undue gain or advantage either to himself or to
his relatives, partners, or associates and if such director is found guilty of making any undue gain, he shall be liable
to pay an amount equal to that gain to the company.
Lesson 16 • Directors 729
ͼǤϔ
A director of a company shall not assignϐ Ǥ
ϐ
ϐǤ
(3) If any loan is advanced or a guarantee or security is given or provided or utilised in contravention of the
provisions of this section,—
ȋȌ ϐ ϐ
ǦϐǢ
ȋȌ ϐ
ϐ ϐ
ǦϐǢ
(iii) the director or the other person to whom any loan is advanced or guarantee or security is given or provided
in connection with any loan taken by him or the other person, shall be punishable with imprisonment which
ϐ ϐ
ǦϐǡǤ
ͻȋȌǡʹͲͳͶ
1. Every director shall disclose his concern or interest in any company or companies or bodies corporate
ȋ Ȍǡϐ ǡ
ͳ.
2. It shall be the duty of the director giving notice of interest to cause it to be disclosed at the meeting held
immediately after the date of the notice.
͵Ǥ ϐ
ϐ
of the company or any other person authorised by the Board for the purpose.
Section 170 makes it obligatory for every company to maintain a register containing the prescribed particulars of
all its directors and Key Managerial Personnel and their shareholding.
ͳͲͳͳͺȋϐ
Directors) Rules, 2014 are as follows:
ȋȌ ϐ
managerial personnel as may be prescribed and which shall include details of securities held by each of them
in the company or its holding, subsidiary, subsidiary of its holding companies or associate companies. [Section
170(1)]
(ii) A return containing such particulars and documents as may be prescribed, of the directors and the key
ϐǦ Ǧͳʹ͵Ͳ
of every director and key managerial personnel, as the case may be, and within 30 days of any change taking
place. [Section 170(2)]
Ǧ ͷͽͶ
is held by the Central Government, or by any State Government or Governments or by the Central Government or by one
ȋϔ ͻ ǡͶͷͻȌǤ
ϔ ϔ Ǧ ͷͽͶȋȌǡ
Dzdz Dzdzȋϔ ͺ ͶͷͽȌǤ
during business hours and the members shall have the right to take extracts there from and copies thereof,
on request and will be provided within 30 days free of cost. [Section 171(1)(a)]
(ii) Such register shall also be kept open for inspection at every annual general meeting of the company and shall
be made accessible to any person attending the meeting. [Section 171(1)(b)]
(iii) If any inspection during business hours is refused, or if any copy required as above is not sent within thirty
days from the date of receipt of such request, the Registrar shall on an application made to him order
immediate inspection and supply of copies required there under. [Section 171(2)]
Ǧ ͷͽͷ
is held by the Central Government, or by any State Government or Governments or by the Central Government or by one
Ǥϔ ͻǡͶͷͻ.
ȑ ͳͲ
ʹ͵ ȍ ȎǡʹͲͳͶ
As per Section 10A of the Companies Act, 2013, a company incorporated after the commencement of the Companies
(Amendment) Act, 2019 (w.e.f. 02/11/2018) and having a share capital shall not commence any business or exercise
any borrowing powers unless—
ȋȌ ϐ
ϐ ǡ
subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of
making of such declaration; and
ȋȌ ϐϐ ϐ Ǧ ȋʹȌ
of section 12.
The declaration under section 10A of the Companies Act, 2013 by a director shall be in ǡǦʹͲ and shall
ϐȋϐ ȌǡʹͲͳͶ
ϐ Ǥ
Provided that in the case of a company pursuing objects requiring registration or approval from any sectoral
regulators such as the Reserve Bank of India, Securities and Exchange Board of India, etc., the registration or
approval, as the case may be from such regulator shall also be obtained and attached with the declaration.
Ǧ
• To attain the objectives prescribed in Memorandum of Association of the company, company depends on
Board of Directors. Directors of a company are its eyes, ears, brain, hands and other essential limbs.
• Directors are trustees for the company i.e. the directors are persons selected to manage the affairs of the
ϐǤ
• Every public company shall have at least 3 directors and every private company shall have at least 2
directors and every one person company shall have at least 1 director as per section 149.
• ͳͷʹǡ Ǥ ͳͶϐ Ǥ
• Maximum Number of Director is 15, which can be increased by passing a Special Resolution.
• Certain prescribed class or classes of companies is required to have at least one woman director. This is a
mandatory provision.
• Every company including one person company shall have at least on director who stays in India for a period
of not less than 182 days ϐ Ǥ
• ϐʹͲ ͳͲ
public companies.
• The members of a company may, by special resolution, specify any lesser number of companies in which a
director of the company may act as director.
• ϐ Ǥ
• ϐ Ǥ
• ϐ ϐ
any creditor or contributory thereof, if he wrongfully obtains, possess or withholds any property of the
company.
GLOSSARY
Board of Director Elected group of individual that represent shareholders.
734 Lesson 16 • EP-CL
ȋ ǤȌǤ
1. Explain the concept appointment of small shareholder directors?
2. Does a person intends to be an independent director need to get itself registered in databank?
3. How to apply for DIN ?
4. What are the roles and responsibilities of Women Directors ?
ͷǤ ϐ ǫϐ
company?
Ǥ ϐ ǫ
exceptions?
7. Mr. ‘A’ is to be appointed as independent director. Explain the law relating to number of directors.
8. Mr. ‘A’ an independent director of ABC ltd. Has Mr. B as alternate director. Mr. B is also the Vice President and
Director of the company. Explain the nature of working and legal interpretation?
ͻǤ ϐ ǫ
ͳͲǤ ϐ ǫ
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
• https://www.sebi.gov.in/sebiweb/home/HomeAction.do?doListing=yes&sid=1&ssid=3&smid=0
Appointment and Remuneration
Lesson 17 of Key Managerial Personnel
Key Concepts One Learning Objectives
Should Know
To understand:
• Management
• Appointment, conditions for appointment of KMP;
•
Personnel • ϐ Ǣ
• Managing • Role of KMP;
Director •
• Whole-time Personnel;
Director • Appointment of Managing Director, Whole Time Director or
• Manager;
• Provisions related to Managerial Remuneration.
• CFO
•
• Manager
• Remuneration
• ϐ
Lesson Outline
• Introduction
•
• Appointment of Managing Director, Whole- Time Director or
Manager
• ϐ
• ǡǡ
Responsibilities
•
• Remuneration of Managerial Personnel
• ǧ
•
•
•
•
736 Lesson 17 • EP-CL
Regulatory Framework
The Companies Act, 2013
Sections Deals With
ͳͻ Appointment of Managing Director, Whole-time Director or Manager
ͳͻ Overall Maximum Managerial Remuneration and Managerial Remuneration in Case of
ϐ
ͳͻͺ ϐ
ͳͻͻ
ʹͲͲ
ʹͲͳ Forms of, and Procedure in Relation to, Certain Applications
ʹͲʹ ϐ Ǧ Ǥ
ʹͲ͵
ʹͲͶ
ʹͲͷ
ȋϐ ȌǡʹͲͳͶ
Rules Deals with
͵ Filing of Return of Appointment
Ͷ
ͷ ǯ
Parameters for consideration of remuneration
Fees
ͺ
ͺ ͺ
ͻ
ͳͲ
Schedule V- Provisions related to Appointment & Remuneration of MD/WTD/Manager
ȋȌǡʹͲͳͷ
Regulations Deals with
ͳ
ȋȌȋ ȌƬȋȌ
͵Ͳ Disclosure of events or information.
INTRODUCTION
Ǥ
ǡʹͲͳ͵ǡϐ Ǥ
ϐ Ǥ
ǡ
Ǥ
ǡ ʹͲͳ͵ ȋ
ȌǡʹͲͳͶ
ǡǦ ǡǡ Ǥ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel 737
ϐǤ
ʹȋ51Ȍ“key managerial personnel”ǡ ǡȄ
ȋȌ ϐ Ǣ
ǯƬϐ ǡʹͲͳ͵
• ʹȋʹͶȌǦ Dz dz Dz dz
ϐ ȋ ȌǦ ȋͳȌ ʹ ǡ
CS ͳͻͺͲ ȋͷ ͳͻͺͲȌ
Ǥ
• Ǧ
Ǥ
• ͺȋȌǡʹͲͳͶǡ
Ǥ
• ǡ
ǡǡ
ǡǡ ϐ
the directors then in India.
• Ȁ
CASE STUDY
Facts of the case: ϐ Ǥ
ȋǡǮǯȌͳͻǡʹͲͳͻ ǡʹͲͳͻǤ
ʹͲǡͶͲǡͲͲͲȀǦǦ
ȋ Ȍ ǡ ʹͲͳͷ ȋ ǡ
ǮǯȌǤ
Order: ϐ ϐ Ǥ
ǡȀ
Ȁ
ǡ
͵ǡʹͲͳͺǤ
Appointment of a person who has attained the age of seventy years may be made by passing a special resolution in
ϔ
appointing such person;
Where no such special resolution is passed but votes cast in favour of the motion exceed the votes, if any, cast
ϔǡ ǡ
ϔ ǡ
years may be made.
However, where his appointment is approved by a special resolution passed by the company in general meeting, no
further approval of the Central Government shall be necessary for such appointment.
ȋȌ Ǣ
ϐǦ
the approval of the Central Government as Per Schedule V of the Companies Act, 2013 (Part I-Schedule V of
ǡʹͲͳ͵Ȍ
Ǧ
ϐ ǡǣȄ
Ͷʹ Lesson 17 • EP-CL
ͳͻȋͶȌ ǡ ʹͲͳ͵ that to the
provisions of section ͳͻ and ǡʹͲͳ͵ǡ Approval of the Central
ǡǦ or manager shall be appointed and Government is not necessary
the terms and conditions of such appointment and remuneration if the appointment is made in
be approved the of Directors accordance with the conditions
and ϔ
of the Companies Act, 2013.
ϐ Ǥ
ͳͻȋͷȌ
Non approval of appointment will not invalidate the act ǡ
done by managing director/ whole-time director or ǡǦ
manager during his provisional appointment before ǡ
general meeting.
be deemed to be invalid.
ǡ ǡ
ǡǤ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel Ͷ͵
ͳͻȋʹȌǡȋͶȌƬȋͷȌ
Note: ͳͻȋͶȌ Ȁ
appointment of Managing Director/WTD/Manager.
ǡ ϐ ǡ
the manner prescribed in its Articles of Association.
ʹǤ director/
Whole time Director/Manager.
ͶǤ ʹͲͳ
ǣ
ȋȌ ʹͲͳ ǡ
ǡ
ȋȌ
ϐ
ǡ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel Ͷͷ
Ǥǣ The procedure shall remain same as discussed earlier but notice for the board meeting shall be a special
notice to all the directors then in India.
OFFICER WHO IS IN DEFAULT
ϐ ȏ ʹȋͷͻȌȐ
Dzϐ ǡ
Ǥdz
Dzϐ dzȏ ʹȋͲȌȐ
ʹȋͲȌǡDzϐ dzǡ
ϐ ǡϐ
ǡϐ ǡǣȄ
ȋȌ Ǧ Ǣ
ȋȌ Ǣ
Case Law:
(In the matter of ȋȌǤȋȌǡ The Supreme Court
ǡʹ͵ȀͲͺȀʹͲͳͻȌ
ȀǤ Ǥ
ǤǤ Ǥ
Ǧ Ǥ ϐ Ͷ ϐ
Ǥ
Ǥ Ǥ
Ǥ ǡ
Ǥ
ǡ ǡϐ
Ǥ
ǡ ϐ Ǥ
ϐ
ǡǤ ǡ
͵͵ǡ ͵͵ͺ ͵ʹ Ǥ
ϐ Ȁ
ȋȌǡ Ǥ
ǡ
ǡ Ǥ
ǡǤ
Do You Know ?
x Ǥ Ǥ
ǤͳͷǤǦǤ͵Ǥ ʹͲ͵
ǡʹͲͳ͵
ǫ
x ǡϐ
ǡ ʹͲͳ͵ǡ ϐ Ǥ
Comment
x ǫ
x ǫ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel Ͷ
ȋȌ ϐ ǣ ϐ
ǡ ʹͲͳ͵ Ǥ
ϐ
ϐ ʹȋͷͳȌ ǡ
ǡϐ Dzϐ
dz ʹȋͲȌǤ
The various provisions and rules framed
Company Secretary is one of the key managerial personnel under the Companies Act it
of a company. Every Listed Companies and all other public for the to sign the annual return
companies (including Private Companies) whose paid up ϐ the Registrar ȏ ͻʹȐǡ to sign
Share Capital is ten crore rupees or more are required to ϐ statements ȏ ͳ͵ͶȋͳȌȐ to
appoint Company Secretary in whole time employment. ȏ ͳͶ͵ȋͳʹȌȐ
However, Company Secretary is not ‘managerial personnel’ ȋͳȌ
for purpose of restriction on remuneration under section before incorporation of ϐ
ͷͿͽ ǡ ͶͷǤ that all the requirements of Act and the Rules
for purpose of computation of ‘managerial remuneration’
ͷͿͽ ǡ Ͷͷǡ
also a director of the company.
ϐ such compliance.
Ͷͺ Lesson 17 • EP-CL
Ǥ
ǡ ϐ Ǥ
ϐ Ǥ
ǡ
Ǥ ǡ
ǯ
Ǥ
ϐ
Ǥ
of the conditions in the loan agreements.
ϐ ϐ ǡ ϐ
ϐ Ǥ
ϐ
Ǥ
Ǧ ǯ
Ǥ
Ǥ Ǧ
Ǧ Ǥ
Ǧ
of other executives vis-a-vis Ǥ Ǧ
ǡ Ǥǡ
Ǧ ǡǤ Ǧ
ǡǡ
Ǥ
ǡǡ Ǥ
ȋȌϐ
ʹͲͷȋͳȌ ǡʹͲͳ͵ǡ ǣ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel Ͷͻ
ͳͲȋȌǡʹͲͳͶǡ
ǡǡǣǦ
• ǡ ǡ
ǡǢ
• ǡǡ
under the provisions of the Act;
• ϐ ǡ ʹͲͳ͵
thereunder; and
• Ǥ
ʹͲͷȋͳȌȋȌ
͵ ǡ
ͳͻͺͲ Ǥ
ǡǦǦ
ǡǤ ǡ ǡǤǤ
Ǧ ǡ
Ǥ ǡǡ
ǡǡ
ǡ Ǥǡǡ ǡ
Ǥ
apprised of changes in policies of the Government, obligations under various statutes and to give balanced advice
ϐ Ǥ
ȋȌ
ǡ
ϐ Ǥ
Ǥ Ǧ ϐ
Ǥ
Auditors
ǡ ǯ ϐ
ǡǡ Ǥ
Ǥ ǡ ϐ
ͳͶͳȋ͵ȌȋȌ ǡʹͲͳ͵Ǥ ǡ
ϐ ͳͷǤ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel ͷͳ
Shareholders
Ǧǡǡ
Ǥ
Ǥ
Ǥ
ǡ
Ǥ
ǡ
ǡ Ǥ
ϐ ȀǤ
ǡǡ Ǥ
Government
Ǧ
Ǥ ǦǦǤ
Ǥ
Ǥ
Community
ͳ͵ͷ ϐ Ǥ
ϐ
Ǥǡ
rural development initiatives including adoption of villages and have built schools, colleges and hospitals to cater to
Ǥ ǡ
Ǥ
ǡ
Ǥ
ǡͳͻͺǡǡ ͳͻͻͳǡ Ǥǡ
Ǥ
Administrator
ǯ Ǥ ǡ
Ǥ
Ǧǡϐ ǡϐ Ǥ
Organizational Administration
ǡ
Ǥ ǡ
ͷʹ Lesson 17 • EP-CL
Financial Administration
ϐ
ǡ Ǥǡ ǡ
ǡ ǯǤ
ǡ
Ǥ ϐ Ǥ
ϐ Ǥ ǡ Ǥ
ϐ ϐ Ǥ
Tax Administration
Ǥ
Ǥǡ ǡǤ
Ǥ
ϐ
ǡϐ ϐ
Ǥ ϐ
ǡǡ ǦǤ
Ǥ ϐ Ǥ
ϐ Ǥ
Ǥ
Personnel Administration
Personnel administration includes recruitment, training, remuneration, promotion, retirement, discharge and
Ǥϐ Ǥǡ
ϐ ǡ
upon to advise and assist the directors on principles and legal points involved in this area of administration.
ǡǡϐ
to all concerned for effective implementation.
ȋͳȌȋȌ ǡ ʹͲͳ͵ǡ
Ǥ
ǡ ǡ
ǡ
Ǥ
ǡ ϔ ϔ ǡ
requiring authentication by a company or contract made by or on behalf of a company may be signed by any key
ϔ
behalf.
ǡ ǡ
ǡ
Ǥ
ͷͶ Lesson 17 • EP-CL
Ǥ
ͺǤ
ͳͲǤ ϔ
The following procedural steps should be taken for appointing a whole-time company secretary:
ͳǤ ǡ ǡǡ
ϐǤ
ʹǤ ͳ͵
Ǥǡ
ϐ
conditions of his appointment.
͵Ǥ Form DIR.12
ȋϐ Ȍ
ϐ ǤͳͶ ϐȋ
ϐ Ȍ ǡ ʹͲͳͶǤ ǡ Ǧ ǡ
ȋ ȌǡǡǡǦ
ϐ Ǥ
ͶǤ ϐ
the same time.
ͷǤ ͳͲ Ǥ
Ǥ ȋȌ Ǥ
Ǥ Ǯ ǯ ϐ ʹȋȌ ǡ
ͳͺͺ Ǥ ǡ Ǥ
ͳǤ
Ǥ
͵Ǥ Ǥ
ͷ Lesson 17 • EP-CL
CASE STUDY
ROLE OF COMPANY SECRETARY WITH RESPECT TO DISCLOSURES AND COMPLIANCES – CASE STUDY
INTRODUCTION
ȋDz dzȌ ascertain
ǤȋDz dzDzdzȌ
ǡ
Ǥ
ϐ ϐ ʹͲͲͺǦͲͻʹͲͳͳǦͳʹǤ
Ǯ ǯǡ Ǯ ǯǡ Ǯ ǯ Ǯ
ǯǤ ͺͲǡͳ͵ǡͳͲͲǤͳͲ Ǥͳʹ
ʹͲͲͶǤ
ϐǦ ʹͲͲͻ͵ǤͷͲ ǤǤʹ ȋͳ Ǥ
Ȍ ǤͳͲͲȀǦ
ǤͳͺͲ Ǥ ͳʹǡʹͲͲͻ
ʹͷǡʹͲͳͲʹǤͷͶ ǤͻǤͺ
ǤʹͷǤͻͷ Ǥ
Ǧ ʹͲͳͳ͵ǤͶͷ Ǥ
ͳ Ǥ Ǥ
SEBI’s Investigation
ǡ Ǧ
ǡinter aliaǡ ǡȂ
ȋȌ
ȋϐ ȌǤ
ȋȌ ϐ ȋǤǤ
ϐȌ ʹͲͲͺǦͲͻǡ ʹͲͲͻǦͳͲ ʹͲͳͲǦͳͳ
true and fair.
ȋ Ȍ ϐǦͳʹ Ǧͳʹ Ǥ
ȋȌ Ǧͳ͵
Ǥ
ȋȌ Ǥ
ȋȌ Ǥǡ
Ǥ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel ͷ
ǡ ǡ
Ǥ Ǥ
ǡǡ
Ǧ
Ǥ
Ǥ Ǥ
ǡϐ
ǡʹͲͲ͵Ǥdz
Findings - ǡ
ǡʹͲͳͳ ǡ
ǡ Ȁ ϐ
ǡϐ
ϐ Ȁ Ȁ
ʹͲͳͲǤ ǡ
ͺ ǡͳͻͷ͵ȋȌǡȋȌǡȋ ȌǡȋȌǡͶȋͳȌǡͶȋʹȌȋȌǡȋȌ
ȋȌ ǡʹͲͲ͵ ͳʹȋȌǡȋȌȋ Ȍ ǡͳͻͻʹǤ
Order of SEBI
ǡ ϐ
ǣ
•
ǡͳͻͻʹǡ
ͳͻͷǡ ǡͳͻͻǡ ǡʹͲͳ͵
ʹͶǡ
Ǥ
• ǡ
ϐ
ǡǤ
ǡ
ϐ ǡ
Ǥ
Ǣ
ǡ ϐ
ϐ Ǧ
and its goals.
Managerial Remuneration
ͳͻ
Part II-Remuneration
Ǧȋ
Ǧ ȋ ϐȌ ϐȀϐȌ
Remuneration should be strictly subject to the provisions of Section 197 of the Companies Act,
ʹͲͳ͵ȋ ͳͻȋͶȌȌ
Ǥǡ ϐ
ͳͻ ǡʹͲͳ͵ǤǦ Ͷ
ǡ Ǧ ǡ ǡ
Ǥ
Ǥ
ǡ
ǣǦ
ȋȌ Ǣ
ȋȌ ϐ
ǡ Ǧ ȋͳȌ ͳͺǡ
Ǥ
ȋȌ More than one Managing ͳͲΨϐ
Director/ Whole time Director/
Manager together Ǥ
ȋȌ ͳΨ ϐ
Managing Director nor Whole
time Directors Director or aWhole time Director required.
or Manager
ȋȌ ͵Ψ ϐ
Managing Director nor Whole
time Directors Director or Whole time Director required.
or Manager
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel 761
Limit of Managerial
Remuneration
Exemptions:
In case of Nidhi Company
ϐ ͲͷǤͲǤʹͲͳͷǡ ǡ ͳͻȋͳȌ
ϐ Ǧ
ϐ
ͳͻǣ
ǡǦ
ȋȌ Ǧ Ǣ
ȋȌ ϐ
ϐ ϐǡ Ǣ
ȋ Ȍ ȋȌ
Ǥ
ͷͿͽȋͷȌ
Ǧ ϔ ǡǦ
Ǣ ϔ Ǥ ǡ
pay remuneration to directors who are neither managing directors nor whole-time directors, for performing
special services subject to conditions as laid down.
In case of Government Company
ϐ ͲͷǤͲǤʹͲͳͷ ͳͻ Ǥ
ϐ
ϐ ͲͶǤͲͳǤʹͲͳ ͳͻ ϐ
Ǥ
762 Lesson 17 • EP-CL
Ǥ
Managerial
Remuneration
payable by
Section-I
Companies having
ϐ
Managerial
Remuneration
payable by
Section-II Companies having nil
Ǧϐ
Managerial
Remuneration
payable in special
Section-III circumstances in case
of nil or in-adequate
ϐ
Perquisites not
Section-IV included in
Managerial
Remuneration
Remuneration
Section-V payable to Managerial
Personnel in two
Companies
ȋȌ
ȋͳȌ ȋʹȌ ȋ͵Ȍ
Sl. Where the effective capital Limit of yearly remuneration Limit of yearly remuneration
No. ȋȌǣ payable shall not exceed (in payable shall not exceed (in
Ȍ Ȍ
person
ȋȌ ͷ Ͳ ͳʹ
crores.
ȋȌ ͷ ͺͶ ͳ
ͳͲͲ Ǥ
ȋȌ ͳͲͲ ͳʹͲ ʹͶ
ʹͷͲ Ǥ
ȋȌ ʹͷͲ Ǥ ͳʹͲͲǤͲͳΨ- ʹͶͲǤͲͳΨ
ǤʹͷͲ ǤʹͷͲ
crores
• ǡ
of appointment; and
• ϐ ϐ
Ǥ
ǣ
ȋȌ ͲǤͷΨ
Ǣ
Ǥ ǣ
ȋȌ Ǣ
Ǥ ǣ
ȋͳȌ Ǣ
ȋʹȌ Ǣ
ȋ͵Ȍ Ǣ
ȋͶȌ ϐǢ
ȋͷȌ Remuneration proposed;
ȋȌ ϐ ǡ ǡϐ
ȋ ȌǢ
ȋȌ ǡ,
Ǥ
Ǥǣ
ȋͳȌ ϐǢ
ȋʹȌ Ǣ
ȋ͵Ȍ ϐǤ
Ǥ
ǯ Dz
dzǡǡ ǣ
ȋȌ ǡϐǡǡ ǡǡ Ǥǡ
directors;
ȋȌ ϐ Ǣ
ȋȌ ǡ ǡ Ǣ
ȋȌ ǡǡ
Ǥ
766 Lesson 17 • EP-CL
• ǡ
ͳͻ
ͳͻǤ
ȋȌ
ǣ
ȋȌ ǡ ǡ
ȋȌ ǡ
ϐ
of revival, or
ȋȌ
ǡʹͲͳϐ
such approval.
ȋ Ȍ
ϐ ǡ
ϐ
ǣȄ
ȋȌ ȋȌ ǡ
Ǣ
ȋȌ ǡ
Ǧ ǡ ϐ
ϐ ϐ Ǧ
ȋͶȌ ͳͻǤ
ȋȌ ǡ
Ǧ ϐ ǡ
deposit holders are being settled on time.
ǡ ǡ Ǧ
or an independent director.
ǡ
ǡ
Ǥ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel 767
ǯ ȏ ͷ ȋ
ȌǡʹͲͳͶȐ
ȋͳȌ ǯǦ
ȋȌ
ϐ Ǣ
ȋȌ ǡ ϐ ǡ ϐ ǡ
ǡǡϐ Ǣ
ȋȌ ϐ Ǣ
768 Lesson 17 • EP-CL
ȋ Ȍ ǡ ʹͲͳͶ
ȋȌ ʹͲͲǡ Ǥ
ȋʹȌ Ǥ
ȋȌ ϐ Ȁ
Ǣ
ȋ Ȍ ϐ ͳȋͳȌǢ
ȋȌ ǡ ǡ
Ǣ
LESSON ROUND-UP
GLOSSARY
Turnover Dzdz ϐ
ǡǡ
ǡǡ ϐ Ǥȋ ʹȋͻͳȌ
ǡʹͲͳ͵
Whole-time director DzǦ dz Ǧ
Ǣȋ ʹȋͻͶȌ ǡʹͲͳ͵Ȍ
Vis-a-vis ǢǤ
TEST YOURSELF
ͳǤ ǡ ʹͲͳ͵Ǥ
ǫ
ʹǤ ǡʹͲͳ͵Ǥ
͵Ǥ ʹͲ͵ ʹͲͳ͵ǫ
ͶǤ Ǥ
ͷǤ Ǥ
Ǥ ϐ ǡ ϐ Ǥ
Ǥ Ȁ Ǥǡ Ǥǫ
ͺǤ Ǥ
ǫ
ͻǤ
ǫ
ͳͲǤ ǫ
ǫ
ͳͳǤ ͷΨ
ͳͳΨǡǯǫ
Lesson 17 • Appointment and Remuneration of Key Managerial Personnel 773
• Introduction
• Meetings of the Board
• Frequency of the meetings of the Board
• The SEBI (LODR) Regulations, 2015 provisions w.r.t. Board Meetings
• Preparation of notices for meetings of Board/Committees of Board
• Agenda of Board/Committees Meetings
• Convening a Meeting
• Quorum for Board Meetings
• Attendance Registers
• Passing of Resolution by Circulation
• Minutes of Board Meeting
• Duties of Company Secretary
• Practical Scenarios
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
776 Lesson 18 • EP-CL
Regulatory Framework
The Companies Act, 2013
Section Deals with
Section-173 Meetings of Board
Section 174 S- Quorum for Meetings of Board
Section 175 Passing of Resolution by Circulation
Section 118 Minutes of Proceedings of Meeting of Board of Directors
Regulation 71 to 75 Meetings of Committees
of Table F
The Companies (Meetings of Board & powers) Rules, 2014
The Companies (Management and Administration) Rules, 2014
Rule 25 Minutes of Proceedings of Meeting of Board of Directors and Meeting of
Committees.
SS-1- Secretarial Standard on Meetings of the Board of Directors
The SEBI (LODR) Regulations, 2015
Regulation 17(2) & The quorum for every Meeting of the Board of Directors
Regulation 17(2A)
Regulation 29 Prior Intimations
Lesson 18 • Meetings of Board and its Committees 777
INTRODUCTION
The meetings play an important role in a corporate democracy. Directors of the Company have to exercise most of
their powers or duties at periodical meetings of the Board or Committee of the Board. Therefore, Companies Act,
2013 and the rules framed thereunder contained detailed provisions relating to frequency, convening and conduct
of the meeting.
ϐ ϐ Ǥ
Act, 2013, mandates a company to hold minimal number of meetings of the Board for its proper functioning.
Board meetings are crucial for a company’s development as these formal meetings are held to devise policies, drive
the management, strategize and evaluate the expectations of the stakeholders.
Does a casual gathering or conversation between members of the Board constitute a Board Meeting?
“A mere coincidental physical presence of all Directors at one place cannot constitute a meeting” –
Guidance Note on SS-1
The Board of directors of Equity Listed Company shall meet at least four times in a year, with a maximum time
gap of one hundred and twenty days between any two meetings. (Regulation 17(2) of SEBI (LODR) Regulations,
2015)
Illustration:
ͳͷ ǡϐǤǤͳͶ
July. if the meeting is held say on 10th July, then the next Meeting should be held within 120 days from 10th July.
In case of one person company (OPC), small company, dormant company and private company which is start- up, at
least one Board meeting should be conducted in each half of the calendar year and the gap between two meetings
should not be less than ninety days. However, this provision would not apply to a one person company in which
there is only one director on its Board.
Illustration:
ϐʹͲʹͲͳ ǡʹͲʹͲǡϐ
if it holds one more Meeting on any day before 31st December, 2020, but on or after 30th August 2020. If it holds
the next Meeting on 30th July, 2020, it should hold at least one more Meeting on or after 30th August, 2020, but
before 31st December, 2020.
Exemptions:
; ǡ ϔ ͶͻǤͶͼǤͶͷͻǡ
173(1) shall apply only to the extent that the Board of Directors, of such companies shall hold at least one meeting
Ǥ
ϔ ϔ
incorporation and thereafter hold at least one meeting of the Board of Directors in each half of a calendar year.
ϔ ϔ
sixty days of its incorporation and thereafter hold at least one meeting of the Board of Directors in each half of a
̺ȋϔ ͶͺǤͶͷǤͶͷͽȌǤ
(e) declaration/ recommendation of dividend, issue of convertible securities including convertible debentures or
of debentures carrying a right to subscribe to equity shares or the passing over of dividend.
(f) the proposal for declaration of bonus securities.
The intimation required above, shall be given at least two working days in advance, excluding the date of the
intimation and date of the meeting:
ϐ ǡǤǡǡǡǡ ǡ
ϐ ȋ
intimation and date of the meeting), and such intimation shall include the date of such meeting of board of directors.
The listed entity shall give intimation to the stock exchange(s) at least eleven working days before any of the
following proposal is placed before the board of directors –
(a) any alteration in the form or nature of any of its securities that are listed on the stock exchange or in the rights
or privileges of the holders thereof.
(b) any alteration in the date on which, the interest on debentures or bonds, or the redemption amount of
redeemable shares or of debenture.
Meetings of Committees
If authorised by articles, the directors have power to delegate their authority to a committee unless prohibited
or limits prescribed in the Act. A company may adopt Regulation 71 of Table F to Schedule I which reads as under:
Regulation 71 states:
(1) The Board may, subject to the provisions of the Act, delegate any of its powers to committees consisting of such
ϐǢ
(2) Any committee so formed shall, in the exercise of the powers so delegated, conform to any regulationsthat may
be imposed on it by the Board.
For transacting business of the company, the committee meetings can be conducted in accordance with Regulations
72 to 75 of Table F to Schedule I of the Act or other corresponding provisions of the company’s articles. These
regulations read as under:
Regulation 72 provides:
(1) A committee may elect a chairman of its meetings;
ȋʹȌ ǡ ϐ
appointed for holding the meeting, the members present may choose one of their members to be chairman of
the meeting.
Regulation 73 provides:
ȋͳȌ ϐǢ
(2) Questions arising at any meeting of a committee shall be determined by a majority of votes of the members
present and in case of an equality of votes, the chairman shall have a second or casting vote.
Regulation 74 provides: All acts done by any meeting of the Board or of a committee thereof or by any person
acting as a director, shall, notwithstanding that it may be afterwards discovered that there was some defect in the
appointment of any one or more of such directors or of any person acting as aforesaid, or that they or any of them
ϐǡ ϐ
be a director.
Regulation 75 provides: Save as otherwise expressly provided in the Act, a resolution in writing, signed by all the
members of the Board or of a committee thereof, for the time being entitled to receive notice of a meeting of the
Board or Committee, shall be as valid and effective as if it had been passed at a meeting of the Board or Committee,
duly convened and held.
780 Lesson 18 • EP-CL
According to SS-1 (Secretarial Standard on Board Meetings) Committees shall meet as often as necessary subject to
the minimum number and frequency prescribed by any law or any authority or as stipulated by the Board.
Frequency of Meetings of a Committee
Committees should meet as often as required and at least as often as stipulated by the Board while constituting the
Committee. Guidelines, Rules and Regulations framed under the Act or by any statutory/regulatory authority may
contain provisions for frequency of Meetings of a Committee and such stipulations should be followed.
Preparation of Notices for meetings of Board/Committees of Board
(1) The Act (Section 173 (3) requires that not less than seven days’ notice in writing
shall be given to every director at the registered address (whether in India or
outside India) as available with the company and such notice shall be sent by
hand delivery or by post or by electronic means.
Provided that a meeting of the Board may be called at shorter notice to transact
urgent business subject to the condition that at least one independent director, if
any, shall be present at the meeting.
Provided further that in case of absence of independent directors from such a
meeting of the Board, decisions taken at such a meeting shall be circulated to
ϐ ϐ
independent director, if any.
(2) SS-1 provides exhaustive guide for the meetings of Board/committees.
Accordingly, it provides that Notice convening a Meeting shall be given at least
seven days before the date of the Meeting, unless the Articles prescribe a longer
period. Notice of an adjourned Meeting shall be given to all Directors including those who did not attend the
Meeting on the originally convened date and unless the date of adjourned Meeting is decided at the Meeting,
Notice thereof shall also be given not less than seven days before the Meeting.
(3) Notice in writing of every Meeting shall be given to every Director by hand or by speed post or by registered
post or by facsimile or by e-mail or by any other electronic means. It will not be given by ordinary post.
(4) The notice shall contain contact number or e-mail address(es) of the chairman or the company secretary
ǡ ϐǤ
company sends the Notice by speed post or by registered post, an additional two days shall be added for the
service of Notice.
(5) The Notice shall be sent to the postal address or e-mail address, registered by the Director with the company
or in the absence of such details or any change thereto, any of such addresses appearing in the Director
ϐ ȋ Ȍ Ǥ ϐ
delivery of Notice, the Notice shall be given to him by such means.
(6) Proof of sending Notice and its delivery shall be maintained by the company for such period as decided by the
Board, which shall not be less than three years from the date of the Meeting.
(7) Notice shall be issued by the Company Secretary or where there is no Company Secretary, any Directoror any
other person authorised by the Board for the purpose.
(8) The Notice shall specify the serial number, day, date, time and full address of the venue of the Meeting.
(9) The Notice shall inform the Directors about the option available to them to participate through Electronic
Mode and provide them all the necessary information.
Lesson 18 • Meetings of Board and its Committees 781
(10) The Notice of a Meeting shall be given even if Meetings are held on pre-determined dates or at pre- determined
intervals.
If notice of meeting is not given to one of its directors, meeting of board of directors is invalid and resolution passed
at such meeting are inoperative. ȏͷͿͽͺȐͺͺͷȋȌ
Board meeting to transact urgent business, the Notice, Agenda and Notes on Agenda may be given at shorter period
of time than stated above, subject to following conditions:
(a) If the company is required to have independent director:
• Presence of at least one Independent director is required.
• In case of absence of independent director, decision taken at such meeting shall be circulated to all the
ǡϐϐ Ǥ
(b) If the company does not require appointing independent director, meeting can be called up at a shorter notice
without any conditions to be complied with.
Ǧͳǡ ǡ ϐ
ϐ ǡ
Meeting itself by a majority of Directors of the company. The fact that the meeting is being held at a shorter notice
shall be stated in the notice.
Illustration:
1) If the Meeting is proposed to be held on 14th November, the last date for giving the Notice would be 7th
November.
2) In case Notice is being sent by facsimile or by e-mail or by any other electronic means to the Directors,
Notice should be sent latest by 7th November.
3) In case any of the Director does not have an e-mail id and therefore the Notice is being sent to him solely
by post, Notice should be sent to all Directors latest by 5th November.
Case Law:
ȋͶͶͻȌͼͼͺͻȋȌ
ϐ
service of notice.
Notice of the _____ (insert sequence number of the meeting) Board Meeting
To,
……………………………..(Address)
Dear Sir/Madam,
Notice is hereby given that ............. (insert sequence number of the meeting) meeting of the members of the Board of
Directors / (Name of the Committee) of the Board of Directors of the Company will be held on ….. (day of the week),
the …..(Date) day of ……..(Month), …….. (year) at ......... (time) at ………. (address of the venue of the meeting).
782 Lesson 18 • EP-CL
The Agenda of the Business to be transacted at the meeting, along with detailed notes thereon and requisite
annexures is enclosed herewith. You are requested to make it convenient to attend the meeting.
Directors may attend the meeting in person or through Video Conferencing / Other Audio Video Means (VC/OAVM).
A Director desirous of attending the meeting through VC/ OAVM should inform well in time so as to make suitable
arrangements accordingly.
Sd/- Date:
(Name)
(Designation)
Agenda of Board/Committees Meetings
As per SS-1, the Agenda, setting out the business to be transacted at the Meeting, and Notes on Agenda shallbe given
to the Directors at least seven days before the date of the Meeting, unless the Articles prescribe a longer period.
What is an Agenda?
DzdzǤ
Ǥ
Ǥ
The Agenda should be accompanied or followed by Notes thereon explaining the proposal in brief, in easily
understandable language and setting out the points for decision of the Board.
Agenda and Notes on Agenda shall be sent to all Directors by hand or by speed post or by registered post or by e-mail
or by any other electronic means. These shall be sent to the postal address or e-mail address or any other electronic
address registered by the Director with the company or in the absence of such details or any change thereto, to any
ϐ ȋ Ȍ Ǥ
In case the company sends the Agenda and Notes on Agenda by speed post or by registered post, an additional two
days shall be added for the service of Agenda and Notes on Agenda.
ϐ ǡ
sent to him by such means. However, in case of a Meeting conducted at a shorter Notice, the company may choose
an expedient mode of sending Agenda and Notes on Agenda.
Proof of sending Agenda and Notes on Agenda and their delivery shall be maintained by the company for such
period as decided by the Board, which shall not be less than three years from the date of the Meeting.
The Notice, Agenda and Notes on Agenda shall be sent to the Original Director also at the address registered with
the company, even if these have been sent to the Alternate Director. However, the mode of sending Notice, Agenda
and Notes on Agenda to the original director shall be decided by the company.
Notes on items of business which are in the nature of Unpublished Price Sensitive Information may be given at a
shorter period of time than stated above, with the consent of a majority of the Directors, which shall include at least
one Independent Director, if any.
ȋȌǡ
of Notes on items of Agenda which are in the nature of Unpublished Price Sensitive Information (UPSI) at a shorter
Notice, the said Notes should not be given at shorter NoticeǦ ǦͷǤ
For this purpose, “Unpublished Price Sensitive Information” means any information, relating to a company or its
securities, directly or indirectly, that is not generally available, which upon becoming generally available, is likely to
materially affect the price of the securities and shall, ordinarily including but not restricted to, information relating
Lesson 18 • Meetings of Board and its Committees 783
to the following: –
ȋȌ ϐ Ǣ
(ii) dividends;
(iii) change in capital structure;
(iv) mergers, de-mergers, acquisitions, delistings, disposals and expansion of business and such other
transactions;
(v) changes in key managerial personnel
General consent for giving Notes on items of Agenda which are in the nature of Unpublished Price Sensitive
ϐ ϐ
Ǥ ǡ
consent shall be taken before the concerned items are taken up for consideration at the Meeting. The fact of consent
having been taken shall be recorded in the Minutes.
Consent to circulate Agenda items which are in the nature of UPSI at a shorter Notice from the new Directors
ϐ Ǧ ǦͷǤ
Illustration
ͳȌͻ ͷ ϐ
give Notes on items of Agenda which are in the nature of UPSI at shorter Notice. If 1 new Director is appointed,
consent from the new Director to circulate Agenda items which are in the nature of UPSI at a shorter Notice may
be obtained individually. If this Director gives his consent, no fresh consent from the Board would be needed. In
case, this Director dissents or does not give his consent, fresh consent should be taken from the Board.
2) ͻ ͷ ϐ
give Notes on items of Agenda which are in the nature of UPSI at shorter Notice. If, out of these 5 who consented,
2 resign, it means that out of the remaining 7 Directors only 3 have given their consent. In such case, fresh
consent is required.
Supplementary Notes on any of the Agenda items may be circulated at or prior to the Meeting but shall be taken
up with the permission of the Chairman and with the consent of a majority of the Directors present in the Meeting,
which shall include at least one Independent Director, if any.
Each item of business requiring approval at the Meeting shall be supported by a note setting out the details of the
proposal, relevant material facts that enable the Directors to understand the meaning, scope and implications of
the proposal and the nature of concern or interest, if any, of any Director in the proposal, which the Director had
earlier disclosed.
Each item of business to be taken up at the Meeting shall be serially numbered.
Any item not included in the Agenda may be taken up for consideration with the permission of the Chairman and
with the consent of a majority of the Directors present in the Meeting.
ϐ ǡǡ
ϐ ǡ
may be destroyed thereafter with the approval of the Board.
ϐ ǡǡ ǡ
over to the transferee company, shall be preserved in good order in physical or electronic form for as long as they
ϐ ǡ
the Board and permission of the Central Government, where applicable.
784 Lesson 18 • EP-CL
Convening a Meeting
Any Director of a company may, at any time, summon a Meeting of the Board, and the Company Secretary or where
there is no Company Secretary, any person authorised by the Board in this behalf, on the requisition of a Director,
shall convene a Meeting of the Board, in consultation with the Chairman or in his absence, the Managing Director or
ǡǦ ǡǡ Ǥ
Directors may participate in the meeting either in person or through video conferencing or other audio
visual means as prescribed, which are capable of recording and recognising the participation of the
directors and of the recording and storing the proceedings of such meetings along with date and time.
ȋͶǡǤǤǡȌǤ
Penalty
Case Law:
ϔȋ ȌƬǤȋȌǤ
ƬǤȋȌ(dated: 10th June, 2019)
NCLAT held that decisions taken in the Board Meetings, EOGMs and AGM discussed in this Judgment regarding
which there was no Notice or short notice to the Appellants, are not binding on the Appellants.
If at any time the number of interested directors exceeds or is equal to two-thirds of the total strength of the Board
of directors, the number of directors who are not interested and present at the meeting, being not less than two
shall be the quorum during such time.
Illustration:
For instance, if there are 12 directors and 10 of them are interested, remaining 2 directors would not
have normally constituted quorum since four directors is the requisite quorum, but, in such event,
remaining 2 disinterested directors would constitute quorum.
Companies Act lays down only minimum number of directors to form a quorum, company by its articles can provide
for a higher number of quorum - v ǡƬ ȋȌǤ[1984] 56 Comp
Cas 194 (P & H)
ǡ
ǡ ϐ
the quorum, or of summoning a general meeting of the company and for no other purpose.
The meeting shall be adjourned due to want of quorum, unless the articles of the company otherwise provide, the
meeting shall be held on the same day at the same time and place in the next week or if that day is a National Holiday, on
the next succeeding day, which is not a national holiday, at the same time and place.
If the Board meeting is adjourned for want of quorum and at the adjourned Board meeting also no quorum
is present, meeting stands cancelled. Adjourned Board meetings are continuation of the original board meeting.
Hence, maximum permissible interval period of 120 days shall be counted from the date of original meeting.
According to SS-1, the Chairman may, unless dissented to or objected by the majority of Directors present at a Meeting
at which a Quorum is present, adjourn the Meeting for any reason, at any stage of the Meeting.
Quorum shall be present not only at the time of commencement of the Meeting but also while transacting business.
A Director shall neither be reckoned for Quorum nor shall be entitled to participate in respect of an item of business
in which he is interested. However, in case of a private company, a Director shall be entitled to participate in respect
of such item after disclosure of his interest.
Additionally, for listed entities the quorum for every meeting of the board of directors of the top 1000 listed entities
with effect from April 1, 2019 and of the top 2000 listed entities with effect from April 1, 2020 shall be one-third of
its total strength or three directors, whichever is higher, including at least one independent director. The participation
of the directors by video conferencing or by other audio-visual means shall also be counted for the purposes of such
quorum.
The top 1000 and 2000 entities shall be determined on the basis of market capitalisation, as at the end of the
ϐ Ǥ
Exemptions:
ͺ ǡǦϐ ǡ dz
shall form a quorum. However, the quorum shall not be less than two members.
ϐ ϐ ǦǦ ȋ͵Ȍ ͳͶ
apply with the exception that interested director may participate in such meeting provided the disclosure of his
interest is made by the concerned director either prior or at the meeting. - ϔ ͺ ǡͶͷͽǤ
In case of Private Company - Sub-Section (3) of Section 174 shall apply with the exception that the interested
director may also be counted towards quorum in such meeting after disclosure of his interest pursuant to section
184.” - ϔ ͷ ǡͶͷͽǤ
Lesson 18 • Meetings of Board and its Committees 787
Illustrations:
ͺ ͶǣͲͲ ǤǤ ϐ Ǥ ǡ
required Quorum is not present. In the absence of any provisions to the contrary in the Articles, the Meeting is
automatically adjourned to the same day in the next week, i.e. 15th August, at the same time and place. However,
since 15th August is a National Holiday, the adjourned Meeting should be held on 16th August.
Meetings of Committees
SS-1 lists hierarchy of stipulations for the quorum of a Committee constituted by the Board that are as following: —
a. First in hierarchy is the quorum that has been stipulated in the Act, or mentioned in the Articles or is stipulated
under any other law;
Ǥ ǡ ϐǢ
Ǥ ϐ ǡ
shall be necessary to form the quorum.
Attendance Registers
Attendance register is a formal evidence of the presence of the persons signing such
register. Maintenance of attendance register is a good secretarial practice which helps in
ǡ Ǧϐ
also protects the interest of individual Directors and the invitees. It contains the signatures
of the Directors who are present and other invitees also. The attendance register is also
contemplated under the Model Articles which state that “Every Director present at any
Meeting of the Board or of a Committee shall sign his name in a book to be kept for that
purpose [Regulation 65 of Table F of Schedule I to the Act].
SS-1 provides that every company shall maintain separate attendance registers for the meetings of the Board
and meetings of the committee. The pages of the respective attendance registers shall be serially numbered. If
an attendance register is maintained in loose leaf form, it shall be bound periodically, at least once in every three
Ǥ ϐ
may be approved by the Board. The attendance register may be taken to any place where a Meeting of the Board
or Committee is held. The attendance register is open for inspection by the Directors. Even after a person ceases
to be a Director, he shall be entitled to inspect the attendance register of the Meetings held during the period of his
Directorship.
The attendance register shall contain the following particulars: serial number and date of the Meeting; in case of
a Committee Meeting name of the Committee; place of the Meeting; time of the Meeting; names and signatures of
the Directors, the Company Secretary and also of persons attending the Meeting by invitation and their mode of
presence, if participating through Electronic Mode.
The attendance register shall be deemed to have been signed by the Directors participating through Electronic
Mode, if their attendance is recorded in the attendance register and authenticated by the Company Secretary
or where there is no Company Secretary, by the Chairman or by any other Director present at the Meeting, if so
authorised by the Chairman and the fact of such participation is also recorded in the Minutes.
788 Lesson 18 • EP-CL
In case of equity listed companies, such records should be preserved as per the policy approved by the Board
for preservation of documents.
The attendance register shall be kept in the custody of the Company Secretary.
Illustration:
ͷǡʹͲͳͲϐ
entry and 18th March, 2015 as the last entry, the attendance register should be preserved at least up to 31st
ǡʹͲʹ͵ǤǤϐ ͵ͳ ǡʹͲͳͷ ͳͺ ǡʹͲͳͷǤ
Leave of Absence
Leave of absence shall be granted to a Director only when a request for such leave has been communicated to
the Company Secretary or to the Chairman or to any other person authorised by the Board to issue Notice of the
Meeting.
ϐ Board
held during a period of twelve months with or without seeking leave of absence of the Board.
Illustration:
Suppose, the Board Meetings of a company were held on 28th March, 2020, 25th June, 2020, 20th September,
2020, 30th December, 2020 and 27th March, 2021. Director X attended the Meeting on 28th March, 2020 and
did not attend any Meetings thereafter.
In such a case, the count for Meetings of the Board held during a period of twelve months for the purpose of
ϐ ʹͷ ǡʹͲʹͲǤǡ
ʹͲʹͳǡ ϐ Ǥ
of the committee. If no Chairman has been so elected or if the elected chairman is unable to attend the meeting,
the Committee shall elect one of its members present to chair and conduct the meeting of the committee, unless
otherwise provided in the articles.
The Chairman of the Board shall conduct the Meetings of the Board. If no such Chairman is elected or if the
Chairman is unable to attend the Meeting, the Directors present at the Meeting shall elect one of themselves to chair
and conduct the Meeting, unless otherwise provided in the Articles.
Passing of Resolution by Circulation: Section 175
A company may pass the resolutions through circulation. No resolution shall be deemed to have been duly passed
by the Board or by a committee thereof by circulation, unless the resolution has been circulated in draft form
together with the necessary papers to all the directors or members of committee at their address registered with
the company in India by hand delivery or by speed post or by courier or through electronic means which may
include e-mail or fax.
Ǥ
one-third of the total number of directors of the company for the time being require that any resolution under
circulation must be decided at a meeting, the chairperson shall put the resolution to be decided at a meeting of the
Board.
The resolution passed through circulation be noted at a subsequent meeting and made part of the minutes of such
meeting.
Matters covered by section 179(3) and rule 8 of the Companies (Meetings of Board and its powers) Rules, 2014 are
required to be passed at a meeting of Board and cannot be passed by circulation.
Further SS-1, requires that each item of business proposed to be passed by way of resolution by circulation shall
be explained by a note setting out details of the proposal, relevant material facts that enable the directors to
understand the meaning, scope and implications of the proposal, the nature of concern of interest, if any, of any
director in the proposal, which the director had earlier disclosed and the draft of the resolution proposed. The note
shall also indicate how a Director shall signify assent or dissent to the Resolution proposed and the date by which
the Director shall respond.
Each resolution shall be separately explained. The decision of the directors shall be sought for each resolution
separately.
A single note containing more than one Resolution may be circulated but the note should enable the signifying of the
decision by a Director on each Resolution separately.
Not more than seven days from the date of circulation of the draft of the resolution shall be given to the directors to
respond and the last date shall be computed accordingly. An additional two days shall be added for the service of the
draft Resolution, in case the same has been sent by the company by speed post or by registered post or by courier.
Passing of resolution by circulation shall be considered valid as if it had been passed at a duly convened meeting of
Ǥ ϐ Ǥ
The Resolution is passed when it is approved by a majority of the Directors entitled to vote on the Resolution, unless
not less than one-third of the total number of Directors for the time being require the Resolution under circulation
to be decided at a Meeting.
The Resolution, if passed, shall be deemed to have been passed on the earlier of:
ȋȌ ϐ ǡ
(b) the date on which assent has been received from the required majority, provided that on that date the number
of Directors, who have not yet responded on the resolution under circulation, along with the Directors who
have expressed their desire that the resolution under circulation be decided at a Meeting of the Board, shall
not be one third or more of the total number of Directors; and shall be effective from that date, if no other
ϐ Ǥ
790 Lesson 18 • EP-CL
Below the resolution near the place of signatures, the directors may be advised to tick one of four options, i.e. (1)
approved (2) Not approved (3) Abstain (4) Should be decided at the meeting.
Minutes
“Minutes” means a formal written record, in physical or electronic form, of the proceedings of a Meeting.
ϔ Ȃ
Court.
Section 118 provides that every company shall prepare, sign and keep minutes of proceedings of every meeting of
Board of Directors or of every committee of the Board within thirty days of the conclusion of every such meeting
concerned in books kept for that purpose with their pages consecutively numbered.
In case of meeting of Board of Directors or of a committee of Board, the minutes shall contain:
(a) Name of the directors present at the meeting; and
(a) In the case of each resolution passed at the meeting, the names of dissenting director or a director who has not
concurred the resolution.
The Chairman shall exercise his absolute discretion in respect of inclusion or non-inclusion of the matters which
is regarded as defamatory of any person, irrelevant or immaterial to the proceedings; or detrimental to company’s
interest in the minutes. Minutes kept shall be evidence of the proceedings recorded in a meeting.
Ǧͳ ǡ ǡ ϐǡ
should be ensured.
Every company shall keep Minutes of all Board and Committee Meetings in a Minutes Book. Minutes kept in
accordance with the provisions of the Act evidence the proceedings recorded therein. Minutes help in understanding
the deliberations and decisions taken at the Meeting.
Maintenance of Minutes
• Minutes shall be recorded in books maintained for that purpose. A distinct Minutes Book shall be maintained
for Meetings of the Board and each of its Committees. Company may maintain its Minutes in physical or in
electronic form. The pages of the Minutes Books shall be consecutively numbered.
• Minutes may be maintained in electronic form in such manner as prescribed under the Act and as may be
decided by the Board. Minutes in electronic form shall be maintained with Timestamp.
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ϔ ǡǡ
Ǥ
• Minutes shall not be pasted or attached to the Minutes Book, or tampered with in any manner. Minutes Books,
if maintained in loose-leaf form, shall be bound periodically depending on the size and volume and coinciding
ϐ Ǥ
Ȉ ϐ
by the Board.
Contents of Minutes
General Contents
a) Minutes shall state, at the beginning the serial number and type of the Meeting, name of the company,
Lesson 18 • Meetings of Board and its Committees 791
Ȉ
presentations tabled or presented at the Meeting, which were not part of the Notes on Agenda and are
ǡϐ
the Chairman.
Ȉ ȋȌ ϐǡ ϐ
reference to such earlier Resolution(s) or decision or state that the Resolution is in supersession of allearlier
Resolutions passed in that regard.
• Minutes of the preceding Meeting shall be noted at a Meeting of the Board held immediately following the date
of entry of such Minutes in the Minutes Book.
Finalization of Minutes
Ȉ ϐ ǡ
Minutes thereof shall be circulated by hand or by speed post or by registered post or by courier or by e-mail
or by any other recognised electronic means to all the members of the Board or the Committee, as on the date
of the Meeting, for their comments.
• The Directors, whether present at the Meeting or not, shall communicate their comments, if any, in writing on
ǡϐ
ϐǤ
• If any Director communicates his comments after the expiry of the said period of seven days, the Chairman, if
so authorised by the Board, shall have the discretion to consider such comments.
• In the event a Director does not comment on the draft Minutes, the draft Minutes shall be deemed to have
been approved by such Director. A Director, who ceases to be a Director after a Meeting of the Board is entitled
to receive the draft Minutes of that particular Meeting and to offer comments thereon, irrespective of whether
he attended such Meeting or not.
• Minutes shall be entered in the Minutes Book within thirty days from the date of conclusion of the Meeting.
• The date of entry of the Minutes in the Minutes Book shall be recorded by the Company Secretary.
• Minutes, once entered in the Minutes Book, shall not be altered. Any alteration in the Minutes as entered shall be
made only by way of express approval of the Board at its subsequent Meeting at which the Minutes are noted
by the Board and the fact of such alteration shall be recorded in the Minutes of such subsequent Meeting.
Signing and Dating of Minutes
• Minutes of the Meeting of the Board shall be signed and dated by the Chairman of the Meeting or by the
Chairman of the next Meeting. Minutes, once signed by the Chairman, shall not be altered.
• Minutes of the previous Meeting may be signed either by the Chairman of such Meeting at any time before the
next Meeting is held or by the Chairman of the next Meeting at the next Meeting.
• The Chairman shall initial each page of the Minutes, sign the last page and append to such signature the date
on which and the place where he has signed the Minutes.
• If the Minutes are maintained in electronic form, the Chairman shall sign the Minutes digitally.
Ȉ ϐ ǡ ǡ ϐ
Secretary or where there is no Company Secretary, by any Director authorised by the Board, shall be circulated
to all the Directors, as on the date of the Meeting and appointed thereafter, except to those Directors who have
waived their right to receive the same either in writing or such waiver is recorded in the Minutes.
• Proof of sending signed Minutes and its delivery shall be maintained by the company for such period as
decided by the Board, which shall not be less than three years from the date of the Meeting.
Inspection and Extracts of Minutes
• The Minutes of Meetings of the Board and any Committee thereof can be inspected by the Directors. Extracts
of the Minutes shall be given only after the Minutes have been duly entered in the Minutes Book. However,
Lesson 18 • Meetings of Board and its Committees 793
ϐ ǡ
had been placed at the Meeting.
• A Director is entitled to inspect and receive, a copy of the Minutes of a Meeting held before the period of
his Directorship. A Director is entitled to inspect and receive a copy of the signed Minutes of a Meeting held
during the period of his Directorship, even if he ceases to be a Director.
• The Company Secretary in Practice appointed by the company, the Secretarial Auditor, the Statutory Auditor,
the Cost Auditor or the Internal Auditor of the company can inspect the Minutes as he may consider necessary
for the performance of his duties.
Ȉ ǡ ϐ
by the Company Secretary to facilitate inspection shall take all precautions to ensure that the Minutes Book is
not mutilated or in any way tampered with by the person inspecting.
• A Member of the company is not entitled to inspect the Minutes of Meetings of the Board.
Preservation of Minutes
• The minutes books of the Board and committee meetings shall be preserved permanently and kept in the
custody of the company secretary of the company or any director duly authorized by the Board.
• ǡ ǡ ǡ
Minutes of all Meetings of the transferor company, as handed over to the transferee company, shall be
preserved permanently by the transferee company, notwithstanding that the transferor company might have
been dissolved.
Penalty
• If any default is made in complying with the provisions of Section 118 of the Companies Act, 2013 in respect
ǡ Ǧϐϐ
ϐǤ
• If a person is found guilty of tampering with the minutes of the proceedings of meeting, he shall be punishable
ϐ
Ǧϐ Ǥ
ͷͷƬ Ƭ
Standards Board.
PRESENT
A.B. Chairman
C.D. Directors
E.F. Directors
I.J. Directors
K.L. Managing Director
IN ATTENDANCE
X Secretary
INVITEES
ϐ
794 Lesson 18 • EP-CL
Illustration:
1) A Board Meeting was held on 1st July 2020 and the next Board Meeting is scheduled to be held on 25th July,
2020.
ϐ
i.e. 25th July, 2020, the same should be placed for noting thereat. If the minutes are yet to be entered in the
minutes books, the same should be placed at the subsequent Board Meeting following the entry of minutes in
the minutes books.
2) In case, the Meeting of a Committee is held on 1st July and the Meeting of the Board is held on 20th July,
Minutes of the Meeting of the Committee should be entered in the Minutes Book on or before 30th July.
796 Lesson 18 • EP-CL
Say, the Minutes of this Meeting of the Committee are entered in the Minutes Book on 28th July. In such a case,
the Minutes of such Meeting should be noted at the Meeting of the Board held immediately following 28th July.
If the Minutes of this Meeting of the Committee are entered in the Minutes Book on 15th July, the Minutes of
such Meeting should be noted at the Meeting of the Board held immediately following 15th July, i.e. on 20th July.
3) If the Meeting is held and concluded on 1st September, 2020, the Minutes should be circulated latest by 15th
September, 2020 and the receipt of the same by the Directors thereafter would be in compliance.
5. If any director wants to place any other item for the discussion at the meeting, then such item may be taken
up with the permission of the Chairman.
Ǥ ǡϐ
or other association of individuals, by giving notice in writing in From MBP-1.
7. Decide the date, time and place of the next Board meeting,
C. After the meeting
1. After the meeting is over, prepare draft minutes of the meeting complying with the requirements of SS- 1; get
it reviewed by the chairman of the meeting and/or the Managing Director of the company.
2. Send copy of draft minutes of the meeting to each of the directors of the company for information and
comments as per requirements of SS-1.
3. Contact and collect draft minutes from each of the directors with their comments. After that, in consultation
Ȁ ϐǤ
should be consecutively numbered.
ϐ
succeeding meeting. All pages of the minutes are to be initialed and the last page of the minutes.
4. Minutes is to be signed and dated by the Chairman.
5. Ensure that the minutes are entered within 30 days of the conclusion of meeting.
Ǥ ϐ ǡ
ϐ
signed.
It is a good practice to collate all documents for each meeting in chronological order such as Copy of Notice,
Agenda, Notes on agenda, Minutes copies of minutes and all documents placed before the meeting, copies of
draft minutes sent, copies of minutes received with comments and copy of minutes as signed by Chairperson,
Ȁ ϐǤ
ǡǡϐ
record, easy access as well as for any future inspection by the regulator. These may also be kept in physical
form or electronically.
Illustration:
1) If the Meeting is proposed to be held on 20th June, the last date for giving the Notice would be?
2) Can director requests for notice to be sent by post, irrespective of sending notice by e-mail or facsimile? In
such case when the notice to be sent?
3) Notice for the Board Meeting is served to the directors. But one of them could not attend the Meeting due
to preoccupation of work and he knowing about this inability to attend the Meeting in advance did not
give any intimation to the Board. In this regard how granting leave of absence be given to him and how to
record the same in minutes?
4) In case Notice is being sent by facsimile or by e-mail or by any other electronic means to the Directors, if
the board meeting to be proposed on 14th November. Notice should be sent latest by?
5) In case Notice is being sent by speed post or by registered post to the Directors, if the board meeting to be
proposed on 15th June. Notice should be sent latest by?
798 Lesson 18 • EP-CL
6) Notice for the Meeting is served on 21st February, 2020 for the Board Meeting scheduled on 1st March,
2020.The facility for Video Conferencing was not provided and hence the same was mentioned in the
notice. After serving the Notice the Board wants to give the facility of Video Conferencing to directors.
How can it be done?
7) Can a Company restrict a director from participating in a Meeting through video conferencing if he has not
given an intimation of participating in the video conference Meetings at the beginning of the year?
8) A private Company where there are 2 Directors. A Meeting of the Board is scheduled for 3rd March, 2020
and Notice was served on 23rd February, 2020. A Director is appointed with effect from 1st March by way
of Circular Resolution dated 1st March, 2020. Can he attend the Board Meeting?
9) A private Company where there are 2 Directors. A Meeting of the Board is scheduled for 3rd March, 2020
and Notice was served on 23rd February, 2020. A Director is appointed with effect from 1st March by way
of Circular Resolution dated 1st March, 2020. Can he attend the Board Meeting?
10) A private company where there are 2 directors and 1 stays abroad. How can an accounts approval Meeting
can happen?
11) A meeting was held on 1st January, 2019. The next meeting was convened on 27th April, 2019 being a
date within the prescribed period of 120 days. If the requisite Quorum is not present on 27th April, 2019
ǡǡ ͶǡʹͲͳͻǤǦ
compliance on part of the Company?
12) Company XYZ Ltd. has 9 Directors out of which 3 are Independent Directors. A Meeting is convened at a
shorter Notice. Following are the scenarios:
a) One Independent Director is present at the Meeting
b) No Independent Director is present at such Meeting
c) In the above case, subsequently all Independent Directors abstain from ratifying the Minutes or
disapprove the decision taken by the majority at the Meeting.
d) In the above case, subsequently one Independent Director approves the decision but the others
disapprove the decision taken by the majority at the Meeting.
Give their effect?
13) In case, the Meeting of a Committee is held on 1st July and the Meeting of the Board is held on 20th July,
Minutes of the Meeting of the Committee should be entered in the Minutes Book on or before 31st July
14) If the Meeting is held on 1st September, 2019, the Minutes should be circulated latest by
………………….?
Lesson 18 • Meetings of Board and its Committees 799
LESSON ROUND-UP
• There shall be minimum of four Board meetings every year and not more one hundred and twenty days
shall intervene between two consecutive Board meetings.
• Director can participate in the Board meeting physically or through video conferencing or other audio
visual mode as may be prescribed.
• Notice of not less than seven days in writing is required to call a board meeting and notice of meeting to all
directors shall be given, whether he is in India or outside India by hand delivery or by post or by electronic
means.
• One third of total strength or two directors, whichever is higher, shall be the quorum for a Board meeting.
The participation of director at Board meeting through video conferencing or by other electronic means
shall be counted for the purpose of Quorum
• Section 173 provides the participation through video conferencing or other audio visual means, subject to
the system being capable of recording and recognizing the participation of the directors and of recording
and storing the proceedings of such meetings along with date and time.
• The Chairman may adjourn a Meeting with the consent of the Members and shall adjourn a Meeting if so
decided by the Members. The Meeting may, however, be adjourned at any time. It may be adjourned after
some items of business have been transacted and the remaining items can be transacted at the adjourned
Meeting.
• A company may pass the resolutions through circulation. The Resolution is passed when it is approved
by a majority of the Directors entitled to vote on the Resolution, unless not less than one-third of the total
number of Directors for the time being require the Resolution under circulation to be decided at a Meeting
• SS-1 provides exhaustive guide for conduct of meetings of Board/committees. Company Secretary should
perform his duties before, during and after the meetings of Board/Committees in accordance with the
requirements of SS-1.
GLOSSARY
One person “One Person Company” means a company which has only one person as a member
Company [Section 2(65)]
Small Company “small company” means a company, other than a public company,–
(I) paid-up share capital of which does not exceed two crore rupees or such higher
amount as may be prescribed which shall not be more than ten crore rupees; and
ȋ Ȍ ϐ
ϐ
be prescribed which shall not be more than one hundred crore rupees:
Provided that nothing in this clause shall apply to—
(A) a holding company or a subsidiary company;
(B) a company registered under section 8; or
(C) a company or body corporate governed by any special Act;(Sec 2(85)
Adjournment Adjournment means to defer or suspend the meeting to a future time, either at an
ϐ
meeting.
800 Lesson 18 • EP-CL
TEST YOURSELF
ȋ ǤȌ
— Quorum
— Resolution by circulation
— Minutes
— Attendance Register
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
Lesson 19 General Meetings
Key Concepts One Learning Objectives Regulatory Framework
Should Know
To understand: The Companies Act, 2013
• General Meeting • Section-96 to 118
• Procedure to conduct
• Adjourned Annual General Meeting/ • Section 121
Meeting Extra-ordinary General The Companies (Management
• Notice Meeting and Administration) Rules, 2014
• Resolutions • Rule 17 to 26
• Quorum
• Rule 31
• Agenda • Procedure of voting
through show of hands/ SS-2- Secretarial Standard on
General Meetings
• Chairman postal ballot/
e-voting The SEBI (LODR) Regulations, 2015
• Class Meeting
• Regulation 17 (11)- The
• Maintenance of Minutes statement to be annexed to the
• Poll
• Report on AGM notice for each item of special
• Postal Ballot business to be transacted at a
general meeting.
• E-voting
• Regulation 29- Prior
• Minutes Intimations.
• Regulation 30- Disclosure of
events or information.
• Regulation 34- Annual Report
• Regulation 42- Record Date or
Date of closure of transfer books.
• Regulation 44- Meetings of
shareholders and voting
Lesson Outline
• Introduction • Minutes
• Annual General Meeting • Report on Annual General
Meeting
• Extraordinary General
Meeting • LESSON ROUND-UP
• Class Meeting • GLOSSARY
• Types of Resolutions • TEST YOURSELF
• Adjourned Meetings • LIST OF FURTHER
READINGS
• Voting
• OTHER REFERENCES
• Demand for Poll
• Postal Ballot
802 Lesson 19 • EP-CL
INTRODUCTION
ϐ
transacting any lawful business. There must be at least two persons to constitute a meeting. Therefore, one
shareholder usually cannot constitute a company meeting even if he holds proxies for other shareholders. However,
in certain exceptional circumstances, even one person may constitute a meeting.
It is to be noted that every gathering or assembly does not constitute a meeting. Company meetings must be
convened and held in perfect compliance with the various provisions of the Companies Act, 2013 and the rules
framed thereunder.
A company is composed of members, though it has its own entity distinct from members. The members of a company
are the persons who, for the time being, constitute the company, as a corporate entity. However, a company, being
ϐ ǡ Ǥ ǡǡ
passed at validly held meetings. The primary purpose of a meeting is to ensure that a company gives reasonable and
fair opportunity to those entitled to participate in the meeting to take decisions as per the prescribed procedures.
The decision making powers of a company are vested in the members and the directors. They exercise their
respective powers through resolutions passed by them. General meetings of the members provide a platform to
express their will in regard to the management of the affairs of the company.
Convening of one such meeting every year is compulsory. Holding of more general meetings is left to the choice
of the management or to a given percentage of shareholders to exercise their power to compel the company to
convene a meeting. Shareholder democracy, class action suits and protection of interest of investors are the essence
and attributes of the Companies Act, 2013.
Board Debentur
Members Creditors
e-holders
By By Class
meeting circulation meetings
General
meetings
Voting at
Meetings
Demand by Show of
poll hands
ǣ ϔ
Lesson 19 • General Meetings 803
Members’ Meetings
A company is required to hold meetings of the members to take approval of certain business items, as prescribed
in the Act.
The meeting to be held annually for seeking approval to certain ‘ordinary business’ is called Annual General Meeting.
A meeting to be held to transact any business other than ordinary business is called extraordinary general meeting.
In certain cases, a company may have to hold a meeting of the members of a particular class of members.
MEMBERS' MEETINGS
1. Annual general meeting should be held once in each calendar year.
ʹǤ ͻ ϐ
ϐ Ǥ
of its incorporation.
3. Subsequent annual general meeting of the company should be held within 6 months from the date of closing
ϐ Ǥ
4. The gap between two annual general meetings shall not exceed 15 months.
Additionally, for listed entities, Regulation 44 of SEBI (LODR) Regulations, 2015 provides that for the top 100
ǡ ͵ͳϐ ǡ
ϐ ϐ ǤͳͲͲ
entities shall provide one-way live webcast of the proceedings of the annual general meetings.
ǣ The top 100 entities shall be determined on the basis of market capitalisation, as at the end of the
ϐ Ǥ
The three time, limits given above are separate and cumulative. Non-compliance of any of them would constitute an
offence. Therefore, the last date for holding AGM shall be the earliest of the above three limits.
Illustration:
Mr. X, Ms. Y (wife of Mr. X) and Mr. C (son of X & Y) are the Directors of XYZ Ltd. They are also the Members of
XYZ Ltd. alongwith 4 other persons who are brothers and sisters of Mr. X. XYZ Ltd. proposes to hold the General
Meeting at the residence of Mr. X.
In this case, since only the directors and their relatives are members of the company and the residence of
Mr. X is generally known to all Members of XYZ Ltd. and can be easily located, the route-map and prominent
landmark is not required to be provided in the Notice.
Types of
business
Ordinary Special
Business business
Section 102(2)(a) provides that all other businesses transacted at an Annual General Meeting except the
following are special business:
(i) t ϐ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ǡϐǡitors.
Accordingly, above mentioned four businesses are ordinary business rest shall be deemed to be special business.
Ǥ ϐ
above shall be deemed as special business at an AGM.
In case of meeting other than AGM, all business shall be deemed to be special. Explanatory statement must be annexed
Ǥ Ǧ ϐ
ǡ ǡǡϐ
accrues to such promoter, director, manager or other key managerial personnel or their relatives, such person shall
ϐ ǡ ϐǤ
Penalty for default in holding the Annual General Meeting [Section 99]
Section 99 provides that if any default is made in complying or holding a meeting of the company, the company and
ϐ ϐ
ǡϐ ϐ
which such default continues.
ͺͲ Lesson 19 • EP-CL
Section 97 provides that if any default is made in holding the annual general meeting of a company, any member of
the company may make an application to the Tribunal to call or direct the calling of, an annual general meeting of the
company and give such ancillary or consequential directions as the Tribunal thinks expedient. Such directions may include
a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.
Every listed entity, under Regulation 30 of SEBI (LODR) Regulation, 2015, is required to disclose the proceedings
of annual & extraordinary general meeting to the Stock Exchange where its securities are listed within 24 hours of
the event.
Calling of
EGM
By board of
Directors
By BoDs on
requisition of
Shareholders
By
Requisitionists
themselves
By Tribunal
Lesson 19 • General Meetings 807
Following are the key provisions, regarding calling and holding of an extraordinary general meeting:
(1) By the Board Suo motu [Section 100 (1)]
ǡϐǡ Ǥ
company shall be held at any place in India. An extraordinary general meeting of a company which is wholly
owned subsidiary of a company incorporate outside India, may be held outside India.
(2) By the Board on requisition of members [Section 100 (2)]
The Board shall call an extraordinary general meeting on receipt of the requisition from the following number
of members:
(a) in the case of a company having a share capital: members who hold, on the date of the receipt of the
requisition, not less than one-tenth of such of the paid-up share capital of the company as on that date
Ǣ
(b) in the case of a company not having a share capital: members who have, on the date of receipt of the
requisition, not less than one-tenth of the total voting power of all the members having on the said date
a right to vote.
ǣ The requisition made as above, shall set out
the matters for the consideration of which the meeting is to be called and shall be signed by the
ϐ Ǥ
Time period for calling the meeting: The Board is required to proceed to call a meeting within 21
days from the date of receipt of a valid requisition, to convene a meeting which should be held within
45 days of such deposit of the requisition with the company.
(3) By requisitionists [Section 100(4)]
(1) If the Board does not within 21 days from the date of receipt of a valid requisition in regard to any
matter, proceed to call a meeting for the consideration of that matter on a day not later than 45 days
from the date of receipt of such requisition, the meeting may be called and held by the requisitonists
themselves. However, in such case, the meeting should be held within a period of 3 months from the
date of the requisition.
Such requisition shall not pertain to any item of business that is required to be transacted mandatorily
through postal ballot.
ǣ The members may requisition convening of an
extraordinary general meeting, by providing such requisition in writing or through electronic mode at
least clear twenty-one days prior to the proposed date of such extraordinary general meeting.
Reimbursement of expenses in calling a meeting: Reasonable expenses incurred by the
requisitionists in calling such a meeting shall be reimbursed by the company to the requisitionists.
The company in turn recovers such expenses from any fee or other remuneration under section 197
payable to such of the directors who were in default in calling the meeting.
In case, the quorum is not present within half-an-hour from the time appointed for holding a meeting
called by requisitionists, the meeting shall stand cancelled. [Section 103(2)(b)]
(2) The notice shall specify the place, date, day and hour of the meeting and shall contain the business to
be transacted at the meeting.-
ϐ
ǡ ϐ
situated. Such meeting shall be held on any day except national holiday.
(3) If the resolution is to be proposed as a special resolution, the notice shall be given as required by sub-
section (2) of section 114.
808 Lesson 19 • EP-CL
(4) Notice to be signed: The notice shall be signed by all the requisitionists or by a requisitionist duly
authorized in writing by all other requisitionists on their behalf or by sending an electronic request
attaching therewith a scanned copy of such duly signed requisition.
(5) No explanatory statement annexed to the notice: No explanatory statement as required under
section 102 need be annexed to the notice of an extraordinary general meeting convened by the
requisitionists and the requisitionists may disclose the reasons for the resolution(s) which they
propose to move at the meeting.
(6) Serving of notice of the meeting: The notice of the meeting shall be given to those members whose
names appear in the Register of members of the company within three days on which the requisitionists
deposit with the Company a valid requisition for calling an extraordinary general meeting.
(7) No meeting convened: Where the meeting is not convened, the requisitionists shall have a right to
receive list of members together with their registered address and number of shares held and the
company concerned is bound to give a list of members together with their registered address made
ϐ ǡǡ
Ǧϐ Ǥ
(8) Mode of giving notice: The notice of the meeting shall be given by speed post or registered post or
through electronic mode. Any accidental omission to give notice to, or the non-receipt of such notice
by any member shall not invalidate the proceedings of the meeting.
(4) By Tribunal [Section 98]
Section 98 provides that if for any reason it is impracticable to call a meeting of a company or to hold or
conduct the meeting of the company, other than an annual general meeting, the Tribunal may, either Ǧ
or on the application of any director or member of the company who would be entitled to vote at the meeting:
(a) order a meeting of the company to be called, held and conducted in such manner as the Tribunal thinks
ϐǢ
(b) give such ancillary or consequential directions as the Tribunal thinks expedient, including directions
modifying or supplementing in relation to the calling, holding and conducting of the meeting, the
operation of the provisions of this Act or articles of the company.
Such directions may include a direction that one member of the company present in person or by
proxy shall be deemed to constitute a meeting. Meeting held pursuant to such order shall be deemed
to be a meeting of the company duly called, held and conducted.
In Ǥ Ǥ ǤǤ v. Ǥ Ǥ (2003) & v. Ƭ
ǤǤ, it was held that “any director can call meeting. However, any resolution passed
without required quorum is void and all such board meetings and general meetings held without
quorum are illegal and set aside.
3. CLASS MEETINGS
Meetings of members of a company fall into two broad divisions, namely, general meetings and class meetings.
Class meetings are meeting of shareholders holding a particular class of shares, which are held to pass a resolution
which will bind only the members of the class concerned. Only members of the class concerned may attend and
vote at meeting. Usually, the rules to voting apply to class meetings as they govern voting at general meetings.
These class meetings must be convened whenever it is necessary to alter or change the rights or privileges of that
class as provided by the articles. For effecting such changes, it is necessary that these are approved at a separate
meeting of the holders of those shares and supported by a special resolution. Under section 48 of the Companies
Act, 2013 (variation of shareholders’ rights) class meeting of the holders of different classes of shares shall be held
if the rights attaching to these shares are to be varied. Similarly, under Section 232 (Merger and Amalgamation of
Companies), where a scheme of arrangement is proposed, meeting of several classes of shareholders and creditors
are required to be held.
Lesson 19 • General Meetings 809
Details of meetings of members or class meetings are required to be mentioned in the Annual Return as per Section
92(1)(f).
TYPES OF RESOLUTIONS
ȋ Ȍ ǣವ The company shall immediately after receipt of the notice, give its
members notice of the resolution at least seven days before the meeting, exclusive of the day of dispatch of
notice and day of the meeting, in the same manner as it gives notice of any general meetings.
ȋȌ ǣವ Where it is not practicable to give the notice in the same manner as it gives notice of
any general meetings, the notice shall be published in English language in English newspaper and in vernacular
ǡ ϐ
the Company is situated. Such notice shall also be posted on the website, if any, of the Company. Such notice
shall be published at least seven days before the meeting, exclusive of the day of publication of the notice and
day of the meeting.
Case Law:
Case law:
In re. Godrej Industries Limited (2014), honorable judge G.S. Patel of Bombay High Court observed the
importance of discussions and deliberations at general meeting of members:
The court observed that the heart of corporate governance lies transparency and a well-established principle
ϐǡ ϐ
the functioning of the company in which they hold equity. Principal among these, to my mind, is not merely
a right to vote on any particular item of business, so much as the right to use the vote as an expression of
an informed decision. That necessarily means that the shareholder has an inalienable right to ask questions,
ϐ Ǥ
shareholder is undecided on any particular item of business. At a meeting of shareholders, he may, on hearing a
ǡ ǡϐǤ
In other cases, he may hold strong views and may desire to convince others of his convictions. This may be in
relation to matters that are not immediately obvious to the shareholder merely on receipt of written information
or a notice. The right to persuade and the right to be persuaded are, of vital importance. In an effort for greater
inclusiveness, these rights cannot be altogether defenestrated. To say, therefore, that no meeting is required and
that the shareholder must cast his vote only on the basis of the information that has been sent to him by post or
email seems to be completely contrary to the legislative intent and spirit to the express.
RESOLUTIONS
Exceptions:
ϔ Ȁ ϔ ϔ
ϔ Ǥ Ǥͷͺ
ǡ Ǥ
812 Lesson 19 • EP-CL
(i) Nothing contained in this clause shall apply in respect of a resolution passed to grant loans, or give
guarantee or provide security in respect of loans under clause (f) of sub-section (3) of section 179 in the
ordinary course of its business by,—
ȋȌ Ǣ
ȋȌ Ǧϐ
ǡͳͻ͵Ͷǡ Ǣ
ȋ Ȍ ϐ ǡͳͻͺǡ
may be prescribed in consultation with th Ǣ
(ii) Filing of resolutions passed in pursuance of sub-section (3) of section 179 with the Registrar is not
ϐ ͶͶȋȌ ͷ ǡ ʹͲͳͷ
ϐ ϔ ͺ ǡͶͷͽǤ
(g) any other resolution or agreement as may be prescribed and placed in the public domain.
Comply with
Section 101 of the
CA, 2013
t & rules
made thereunder
and SS-2
AGM to be held
during the NOTICE OF A 21 days
business hours- clear notice
between 9 a.m.
MEETING
to 6 p.m.
Notice shall
specify the
place, date,
day & hour of
the meeting
814 Lesson 19 • EP-CL
Illustration
Question: ABC Ltd. issued a notice on 1st August, 2020 to hold its AGM on 24th August, 2020. Check the validity
of the notice referring to the provisions of the relevant act, in case it is sent by post.
Answer: Date of holding AGM: 24th August, 2020 Date of dispatch of notice: 1st August, 2020
Days to be excluded:
(a) Day of holding AGM i.e 24th August, 2020
(b) Day of dispatch of notice i.e. 1st August, 2020
(c) 2 additional days for service of notice i.e 2nd& 3rd August, 2020 (SS-2 Para 1.2.6)
Number of days notice given: 20 days
Number of days notice required under section 101 of the Act is 21 days. Therefore it is not a case of valid notice.
However, shortfall of 1 day can be condoned if consent is given for such shorter notice by at least 95% of the
members entitled to vote at such AGM.
Shorter notice
A general meeting may be called after giving a shorter notice also if consent is given in writing or by electronic
mode by not less than 95% of the members entitled to vote at such meeting.
A general meeting may be called after giving shorter notice if consent, in writing or by electronic mode, is accorded
thereto–
ȋȌ ǡǦϐ
thereatǢ
(ii) in the case of any other general meeting, by members of the company–
(a) holding, if the company has a share capital, majority in number of members entitled to vote and who
Ǧϐ Ǧ
Ǣ
ȋȌ ǡ ǡǦϐ Ǥ
exercisable at that meeting:
Where any member of a company is entitled to vote only on some resolution or resolutions to be moved at a meeting
and not on the others, those members shall be taken into account in respect of the former resolution or resolutions
and not in respect of the latter.
Illustration 1:
Say, a company XYZ Ltd. wish to hold its General Meeting at a shorter notice, immediately after the Board
Meeting on same day and the required consent from 95% of the Members entitled to vote at the Meeting is
ϐ Ǥ ͻͷΨ
Members entitled to vote at the meeting is received, still the proxy requirements need to be complied with by
the Company.
In other words, in the above case the Board Meeting and General Meeting can’t be held on the same day.
Illustration 2:
Considering the above illustration, if the consent of all the Members (i.e. 100%) entitled to vote at such Meeting
ϐ ǡ
complied with. In other words, in such a case the Board Meeting and General Meeting can be held on the same
day.
CONTENTS OF NOTICE
Section 101(2) provides that every notice of a meeting shall specify the place, date, day and the hour of the meeting
and shall contain a statement of the business to be transacted at such meeting.
ȋ ͻȌ
The day and date of the meeting should be clearly stated in the notice. An annual general meeting and a meeting
called by the requisitionists shall be called on a day that is not a National Holiday. .
Ȃ Ǧ ǡDz dz
Holiday by the Central Government.
ͺͳ Lesson 19 • EP-CL
As explained earlier National Holiday means Republic Day i.e. 26th January, Independence Day i.e. 15th August,
Gandhi Jayanti i.e. 2nd October and such other day as may be declared as National Holiday by the Central Government.
ȏ ͻȋʹȌȐ
Exact time of holding the meeting should be given in the notice. An annual general meeting and a meeting called
by the requisitionists can be called during business hours only, i.e. between 9:00 a.m. and 6:00 p.m. There is no
restriction of timings in case of an extraordinary general meeting.
In case of Section 8 Company, the time, date and place of each AGM are decided upon before-hand by the directors
having regard to directions, if any, given in this regard by the company in its general meeting.
As per regulation 17(11) of SEBI LODR Regulations, the statement to be annexed to the notice as referred to in
sub-section (1) of section 102 of the Companies Act, 2013 for each item of special business to be transacted at
a general meeting shall also set forth clearly the recommendation of the board to the shareholders on each of
ϐ Ǥ
Illustration:
Mr. X, Ms. Y (wife of Mr. X) and Mr. C (son of X & Y) are the Directors of XYZ Ltd. They are also the Members of
XYZ Ltd. along with 4 other persons who are brothers and sisters of Mr. X. XYZ Ltd. proposes to hold the General
Meeting at the residence of Mr. X.
In this case, since only the directors and their relatives are members of the company and the residence of Mr. X
is generally known to all Members of XYZ Ltd. and can be easily located, the route-map and prominent landmark
is not required to be provided in the Notice.
Illustration:
XYZ Ltd. proposes to enter into a contract with PQR Ltd. Mr. X and Mr. Y, who are promoters of XYZ Ltd. hold 1.5%
and 0.5% of the total paid-up share capital of PQR Ltd. respectively. In this case, the shareholding of both, Mr. X
and Mr. Y should be disclosed in the explanatory statement of the Notice of General Meeting of XYZ Ltd., since
the extent of their shareholding collectively is not less than two percent of the paid-up share capital of PQR Ltd.
Illustration:
Consider a company where the number of Members was originally large, say 500, and the Quorum fixed by
the Articles was 100 Members present. Subsequently, 450 Members sold their shares which were acquired
by some of the remaining 50 Members. Here, proceedings will be valid if all Members are present in person.
In the given case, if less than 50 Members are present, there shall be no Quorum.
Para 3.2 of SS-2 provides that a duly authorized representative of a body corporate or the representative of the
President of India or the Governor of a State is deemed to be a Member personally present and enjoys all the rights
of a Member present in person.
One person can be an authorized representative of more than one body corporate. In such a case, he is treated as
more than one member present in person for the purpose of quorum. However, to constitute a meeting, at least
two individuals shall be present in person. Thus, in case of a public company having not more than 1000 members
Lesson 19 • General Meetings 821
(b) In the case of a private company, two members personally present, shall be the quorum for a meeting of the
company.
One-Man Meeting
ϔȏȐ
ǡ ǡ ȏ ϔ Ǥ Ƭ ǡ ͷ ͷͿ;
Ǥ;ȀͷͼȀȋͷȌȀͼͷǦȐǤ Ȃ Ǥ
ǡ ǡ
Ǥǣ
Ȉ ǡ Ǥ
Ȉ Ϳͼ ǡ
ǡ
ȏǦ ȋͷȌ Ϳͽ ȐǤ
Ȉ ǡ
ȏȂ ȋͷȌ Ϳ; Ȑ
822 Lesson 19 • EP-CL
Ǧ If the quorum is not present within half-an-hour from the time appointed for
holding a meeting of the company–
(a) the meeting shall stand adjourned to the same day in the next week at the same time and place, or to such
Ǣ
(b) the meeting, if called by requisitionists (under section 100), shall stand cancelled.
ADJOURNED MEETINGS
Notice of an adjourned meeting- Where the meeting stands adjourned to the same day in the next week at the
same time and place, or to such other day, not being a National Holiday, or at such other time and place as the Board
may determine, the company shall give at least 3 days notice to the members either individually or by publishing an
advertisement in 2 newspapers (one in English and one in vernacular language) which is in circulation at the place
ϐ Ǥ
Ǧ If at the adjourned meeting also, a quorum is not present within half- an-
hour from the time appointed for holding meeting, the members present, being not less than two in numbers, will
constitute the quorum.
PARA 15 of SS-2
Para 15.1 provides that a duly convened Meeting shall not be adjourned unless circumstances so warrant. The
Chairman may adjourn a Meeting with the consent of the Members, at which a Quorum is present, and shall adjourn
a Meeting if so directed by the Members.
Meetings shall stand adjourned for want of requisite Quorum. The Chairman may also adjourn a Meeting in the event
of disorder or other like causes, when it becomes impossible to conduct the Meeting and complete its business.
Para 15.2 provides that if a Meeting is adjourned Ǧ or for a period of thirty days or more, a Notice of the
adjourned Meeting shall be given in accordance with the provisions contained hereinabove relating to Notice.
Para 15.3 provides that if a Meeting is adjourned for a period of less than thirty days, the company shall give not less
than three days’ Notice specifying the day, date, time and venue of the Meeting, to the Members either individually
or by publishing an advertisement in a vernacular newspaper in the principal vernacular language of the district in
ϐ ǡǡ
a wide circulation in that district.
Para 15.4 provides that if a Meeting, other than an Annual General Meeting and a requisitioned Meeting, stands
adjourned for want of Quorum, the adjourned Meeting shall be held on the same day, in the next week at the same
time and place or on such other day, or at such other time and place as may be determined by the Board.
Illustration:
Question: The articles of association of XYZ Ltd. having 700 members as on cut off date, prescribe for physical
presence of 7 members to constitute quorum of general meetings. Following are the status of persons present in
a general meeting of XYZ Ltd to consider the appointment of MD. Check the quorum of the meeting.
(a) Mr. A, the representative of Governor of Maharashtra.
(b) Mr. B & Mr. C are preference shareholders
(c) Mr. D representing ABC Ltd. and SKY Ltd.
(d) Mr. E, Mr. F, Mr. G and Mr. H are proxies of shareholders
Hint:
(a) Since Mr. A is the representative of the Governor of Maharashtra, shall be treated as a member personally
present (Section 112).
(b) Preference shareholders can vote only in relation to such matters which directly affect their rights. In
this case, meeting was called to take decision on appointment of MD, which does not affect their rights.
Therefore, Mr. B & Mr. C are not members personally present.
Lesson 19 • General Meetings 823
(c) Since Mr. D represents two body corporates, he would be treated as two members personally present.
(Section 113)
(d) Since Mr. E, Mr. F, Mr. G and Mr. H are proxies of shareholders and members are not personally present.
They are not considered while counting quorum.
From the above analysis, it can be concluded that only 3 members are personally present and they do not
ϐ Ǥ
Note: The quorum required in respect of general meeting of a public company is 5 members personally present (in
case total number of members is less than 1000) and the quorum can be increased by the articles of the company.
Para 5.3 of SS-2 provides that in case of public companies, the Chairman shall not propose any Resolution in which
he is deemed to be concerned or interested nor shall he conduct the proceedings for that item of business.
If the Chairman is interested in any item of business, without prejudice to his Voting Rights on Resolutions, he shall
entrust the conduct of the proceedings in respect of such item to any dis-interested Director or to a Member, with
the consent of the Members present, and resume the Chair after that item of business has been transacted.
Para 4.1.1 of SS-2 provides that if any Director is unable to attend the Meeting, the Chairman shall explain such
absence at the Meeting.
Para 4.1.2 of SS-2 requires that Directors who attend General Meetings of the company and the Company Secretary
shall be seated with the Chairman. The Company Secretary shall assist the Chairman in conducting the Meeting.
In every notice calling a meeting of a company which has a share capital, or the articles of which provide for
voting by proxy at the meeting, there shall appear with reasonable prominence a statement that a member
entitled to attend and vote is entitled to appoint a proxy, or, where that is allowed, one or more proxies, to
attend and vote instead of himself, and that a proxy need not be a member.
ǡϐ
ϐǤ
(2) Disabilities of proxy: A proxy shall not have the right to speak at the meeting. A proxy cannot vote on a show
of hands. A proxy is not counted for the purpose of quorum.
(3) Rights of proxy: A proxy has the right to attend the meeting. A proxy has the right to vote only on a poll. A
proxy, if eligible under section 109, has the right to demand a poll.
(4) Restriction on proxy: ͺȋϐ Ȍ
not be entitled to appoint any other person as his proxy unless such other person is also a member of such
company.
ϐ
holding in the aggregate more than ten percent of the total share capital of the company carrying voting
rights.
A member holding more than 10% of the total share capital of the company carrying voting rights may
appoint a single person as proxy, provided that such person shall not act as proxy for any other person or
shareholder.
(5) Time limit for deposit of proxy forms: The instrument appointing the proxy must be deposited with the
company, 48 hours before the meeting. Any provision contained in the articles, requiring a longer period than
Ͷͺ Ͷͺ ϐǤ
ǡ ͷͶͻǡ
Ǥ
Ǧ ǡǤ
ǡ
ǡǦ ǡ
Ǥǡ
Ǥ
ȋȌ Ǥ ǦͳͳǤIt needs to be in writing and signed by
the appointer or his attorney duly authorised in writing. If the appointer is a body corporate, the instrument
ϐ Ǥ
instrument appointing a proxy, if in MGT-11, shall not be questioned on the ground that it fails to comply with
ϐ Ǥ
Other provisions in Secretarial Standard w.r.t. proxies:
1. Deposit of proxies: Para 6.6.1 of SS-2 provides that proxies shall be deposited with the company either in
person or through post not later than forty-eight hours before the commencement of the Meeting in relation
to which they are deposited and a Proxy shall be accepted even on a holiday if the last date by which it could
be accepted is a holiday.
2. Records of proxies: Para 6.9.1 of SS-2 requires that all Proxies received by the company shall be recorded
chronologically in a register kept for that purpose.
Para 6.9.2 of SS-2 provides that in case any Proxy entered in the register is rejected, the reasons therefor shall
be entered in the ‘remarks’ column.
The instrument of Proxy shall be signed by the appointer or his attorney duly authorized in writing, or if
ǡϐ
by it.
ͺʹ Lesson 19 • EP-CL
ǤʹǤʹϐǡǡ
to which it relates including any adjournment thereof.
Para 6.3 provides that an instrument of Proxy is valid only if it is properly stamped as per the applicable law.
Unstamped or inadequately stamped Proxies or Proxies upon which the stamps have not been cancelled are
invalid.
Para 6.4.1 requires that the Proxy-holder shall prove his identity at the time of attending the Meeting.
Para 6.4.2 provides that an authorized representative of a body corporate or of the President of India or of the
Governor of a State, holding shares in a company, may appoint a Proxy under his signature.
Para 6.5.1 states that a Proxy form which does not state the name of the Proxy shall not be considered valid.
Para 6.5.2 states that undated proxy shall not be considered valid.
Para 6.5.3 provides that if a company receives multiple proxies for the same holdings of a Member, the Proxy
Ǣ ϐ
mention of time, all such multiple Proxies shall be treated as invalid.
Illustration:
Assume that the General Meeting of a company is scheduled on 22nd September 2020 and company has
received 4 proxies for the same holdings of a Member dated with 5th , 12th , 10th and 20th September 2020.
The proxy dated last should be considered valid i.e. 20th . However, if the proxies received are not dated or bear
the same date without mention of time, all proxies should be treated as invalid.
(3) Inspection of proxy: Every member entitled to vote at a meeting of the company, or on any resolution to be
moved thereat, is entitled to inspect the proxies lodged with the company, if at least 3 days notice in writing
is given to the company. Such notice shall be received at least three days before the commencement of the
Ǥ ʹͶϐ
commencement of the meeting, during the business hours of the company, and ending with the conclusion of
the meeting. Such inspection should be allowed between 9:00 am and 6:00 pm during such period.
ϐǡ
Original Meeting is adjourned.
(4) Revocation of proxy: If after appointment of proxy, the member himself attends the meeting, it amounts to
automatic revocation of proxy. But once the proxy has voted, it cannot be revoked.
Para 6.7.1 provides that if a Proxy had been appointed for the original meeting and such meeting is adjourned,
any Proxy given for the adjourned Meeting revokes the Proxy given for the original Meeting.
Para 6.7.2 provides that a proxy later in date revokes any Proxy/Proxies dated prior to such Proxy.
Para 6.7.3 provides that a Proxy is valid until written notice of revocation has been received by the company
before the commencement of the Meeting or adjourned Meeting, as the case may be.
An undated notice of revocation of Proxy shall not be accepted. A notice of revocation shall be signed by the
same Member (s) who had signed the Proxy, in the case of joint Membership.
A Proxy need not be informed of the revocation of the Proxy issued by the Member.
Lesson 19 • General Meetings 827
Section 105 of
the CA, 2013
alongwith rules
made thereunder
t
The instrument
appointing the Only member can
proxy must be appoint a proxy.
deposited with the Proxy need not be
company, 48 hours a member
before the meeting
PROXIES
Same person
Proxy should not cannot be a proxy
be counted for for more than 50
quorum
Illustrations:
Question: Annual General Meeting of a Public Company was scheduled to be held on 15.12.2020. Mr. A, a
shareholder, issued two Proxies in respect of the shares held by him in favor of Mr. ‘X’ and Mr. ‘Y’. The proxy
in favor of ‘Y’ was lodged on 12.12.2020 and the one in favor of Mr. X was lodged on15.12.2020. The company
rejected the proxy in favor of Mr. Y as the proxy in favor of Mr. Y was of dated 12.12.2020 and in favor of Mr. X
was of dated15.12.2020. Is the rejection by the company in order?
Hint: As per Section 105 of the Companies Act, 2013 a proxy should be deposited 48 hours before the time
of the meeting. In the given case, the proxies should have, therefore, been deposited on or before 13.12.2020
(the date of the meeting being 15.12.2020). X deposited the proxy on 15.12.2020.
Therefore, proxy in favour of Mr. X has become invalid. Thus, rejecting the proxy in favour of Mr. Y is unsustainable.
Proxy in favor of Y is valid since it is deposited in time.
Question: Mr. A, a member of XYZ Limited, appoints Mr. B as his proxy to attend the general meeting of the
company. Later he (Mr. A) also attends the meeting. Both Mr. A (the member) and Mr. B (the proxy) voted on a
particular resolution in the meeting. Mr. A’s vote was declared invalid by the chairman stating that since he has
appointed the proxy and Mr. B’s vote has been considered as valid. Mr. A objects to the decision of the Chairman.
Decide, under the provisions of the Companies Act, 2013 whether Mr. A’s objection shall be taxable.
Hint: Decision by Chairman is invalid. Since Mr. A i.e. a member himself attended a meeting and voted on
resolution, it will amount to revocation of proxy. Thus, any vote put by Mr. B i.e. proxy shall be invalid.
Illustrations:
Question: (1) Mr. A holds 10% of the total share capital of the Company and appoints Mr. B as the proxy holder.
Can Mr. B accept appointment as proxy by any other shareholder?
Hint : Mr. B cannot accept appointment as proxy by any other shareholder
(2) Mr. C has been appointed as the proxy holder by 48 members. Mr. D, Mr. E and Mr. F are also interested in
appointing Mr. C as their proxy. Can they do so?
Hint : Mr. C cannot be appointed as proxy by more than 50 members and hence he can accept appointment
only by 2 members out of the three (i.e. Mr. D, Mr. E and Mr. F). However, the aggregate shareholding of the 50
members should not exceed 10% of the total share capital of the Company.
VOTING
E-voting do not eliminate members right to physically attend and vote at the general meeting. However, member
can cast his vote through one mode only. A member after casting his vote through e-voting can go and attend the
general meeting but cannot cast vote in that general meeting.
The facility of Remote e-voting does not dispose with the requirements of holding a General Meeting by the company.
Applicability: Section 108 of the Act r/w Rule 20 of the Companies (Management and Administration) Rules, 2014
shall apply to such companies as may be prescribed by the Central Government. The prescribed class of companies,
for this purpose, are-
ȋȌ Ǣ
(ii) All companies having 1000 or more members.
However, the provisions of section 108 shall not apply to a Nidhi, or an enterprise or institutional investor referred
to in chapter XB (Companies listed on SME exchange) or chapter XC (Companies listed on institutional trading
platform without IPO) of the SEBI (Issue of Capital and Depository Receipt) Regulations, 2009.
Following companies are out of ambit of mandatory e-voting:-
(i) Companies whose debenture/preference shares only are listed.
(ii) Companies listed on SME trading platform.
(iii) Companies listed on institutional trading platform.
ǣ
(a) A company to which section 108 is applicable, shall provide to its members facility to exercise their right to
vote on resolution proposed at general meetings by electronic means.
(b) a resolution proposed to be considered through voting by electronic means shall not be withdrawn.
(iv) 'electronic voting system' means a secured system based process of display of electronic ballots,
recording of votes of the members and the number of votes polled in favour or against, in such a manner
that the entire voting exercised by way of electronic means gets registered and counted in an electronic
Ǣ
(v) 'remote e-voting' means the facility of casting votes by a member using an electronic voting system from
a place other than venue of general meeting
(vi) 'secured system' means computer hardware, software, and procedure that-
ȋȌ Ǣ
ȋȌ Ǣ
ȋ Ȍ Ǣ
ȋȌ Ǣ
(vii) 'voting by electronic mean' includes "remote e-voting and voting" at the general meeting through an
electronic voting system which may be the same as used for remote e-voting.
Procedure of E-Voting
The Board shall:
(a) Appoint one or more scrutinisers for e-voting or the ballot process,
The scrutiniser (s) may be a Company Secretary in Practice, a Chartered Accountant in Practice, a Cost
Accountant in Practice, or an Advocate or any other person of repute who is not in the employment of the
company and who can, in the opinion of the Board, scrutinise the e-voting process or the ballot process, as
the case may be, in a fair and transparent manner.
The scrutiniser (s) so appointed may take assistance of a person who is not in employment of the company
and who is well-versed with the e-voting system. The scrutiniser shall be willing to be appointed and be
available for the purpose of ascertaining the requisite majority.
Prior consent to act as a scrutiniser(s) shall be obtained from the scrutiniser(s) and placed before the Board
for noting.
(b) Appoint an Agency – NSDL, CDSL or other such agency;
The agency shall be appointed for providing and supervising the electronic platform for voting.
(c) Decide the cut-off date for the purpose of reckoning the names of Members who are entitled to Voting
Rights;
The cut-off date for determining the Members who are entitled to vote through Remote e-voting or voting at
the meeting shall beϐǤ
Only Members as on the cut-off date, who have not exercised their Voting Rights through Remote e-voting,
shall be entitled to vote at the Meeting.
SS-2 provides that every company providing e-voting facility shall offer such facility to all Members,
irrespective of whether they hold shares in physical form or in dematerialised form.
(d) Authorise the Chairman or in his absence, any other Director to receive the scrutiniser’s register,
ǦǤ
(i) The scrutiniser(s) is required to submit his report within a period of three days from the date of the
meeting.
(ii) The Chairman or any other director so authorized shall countersign the scrutiniser’s report so received.
Lesson 19 • General Meetings 831
(e) Notice
A company which provides the facility to its members to exercise voting by electronic means shall comply
with the following procedure, namely:-
(i) the notice of the meeting shall be sent to all the members, directors and auditors of the company either
ȋȌ Ǣ
ȋȌ ǡǡǦ Ǣ
ȋ Ȍ Ǣ
The notice shall also be placed on the website, if any, of the company and of the agency forthwith after it is sent to
Ǣ
As per SS-2, such notice shall remain on the website till the date of General Meeting.
The notice of the meeting shall clearly state that:-
(i) The company is providing facility for voting by electronic means and the business may be transacted
through such voting.
(ii) The facility for voting, either through voting by electronic means or ballot/polling paper shall also be
made available at the meeting and members attending the meeting who have not already cast their
vote by remote e-voting shall be able to exercise their right at the meeting.
(iii) That the members who have cast their vote by remote e-voting prior to the meeting may also attend
the meeting but shall not be entitled to cast their vote again.
(A) Additional Disclosures in notice:
The notice shall –
ȋȌ Ǣ
(ii) Indicate the time schedule including the time period during which the votes may be cast by remote
ǦǢ
ȋȌ Ǣ
(iv) Specify the process and manner for generating or receiving the password and for casting of vote in a
secure manner.
(B) Public notice by way of advertisement:
(i) The company shall cause a public notice by way of an advertisement to be published, immediately on
completion of dispatch of notice of general meeting.
(ii) The public notice shall be published at least twenty-one days before the date of general meeting, at
least once in a vernacular newspaper in the principal vernacular language of the district in which the
ϐ ǡ ǡ
once in English language in an English newspaper having country-wide circulation.
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ǦǢ
ȋ Ȍ ǦǢ
ȋȌ ǦǢ
(e) The manner in which persons who have acquired shares and become members of the company
Ǣ
832 Lesson 19 • EP-CL
(b) in the case of any other company: by any member or members present in person or by proxy, where
allowed, and having not less than one-tenth of the total voting power.
ϐǤ
The demand for a poll may be withdrawn at any time by the persons who made the demand.
• The Scrutinizers’ report state total votes cast, valid votes, votes in favour and against the resolution
including the details of invalid polling papers and votes comprised therein.
• The Scrutinizers submit the Report to the Chairman who shall counter-sign the same.
• The Chairman declare the result of Voting on poll. The result may either be announced by him or aperson
authorized by him in writing.
The scrutinizer/s appointed for the poll, shall submit a report to the Chairman of the meeting in Form No. MGT.- 13
within 7 days from the date the poll is taken. The report shall be signed by the scrutinizer or by all the scrutinizers,
in case there is more than one scrutinizer.
Note: Sections 102, 103, 104, 105, 106, 107 and 109 shall apply in case of private company unless otherwise
ϐ Ǥ
Business to be transacted through postal ballot: [Rule 22 of the Companies (Management and
Administration) Rules, 2014]
The following items of business shall be transacted only by means of voting through postal ballot:
(a) Alteration of the objects clause of the memorandum and in the case of the company in existence immediately
ǡ Ǣ
ȋȌ ϐ
company.
ȋ Ȍ ϐ ǡǤ
ͺ͵ Lesson 19 • EP-CL
(d) Change in objects for which a company has raised money from public through prospectus and still has any
unutilized amount out of the money so raised.
(e) Issue of shares with differential rights as to voting or dividend or otherwise.
(f) Variation in the rights attached to a class of shares or debentures or other securities.
(g) Buy-back of shares by a company.
(h) Election of a ‘small shareholders’ director.
(i) Sale of the whole or substantially the whole of an undertaking of a company.
(j) Giving loans or extending guarantee or providing security exceeding 60% of its paid up share capital, free
reserves and securities premium account or 100% of its free reserves and securities premium account.
(k) any other resolution prescribed under any applicable law, rules or regulations.
ȋȌǡ
ͷͶ;ǡ Ǥ
Following companies are not required to transact any business through postal ballot.
(i) One person company
(ii) All other companies having members up to 200.
Rule 22 of the Companies (Management and Administration) Rules, 2014 lay down the procedure to be
followed for conducting business through postal ballot.
(1) Notice to all shareholders: The company shall send a notice to all the shareholders, along with a draft
resolution explaining the reasons therefore and requesting them to send their assent or dissent in writing
on a postal ballot because postal ballot means voting by post or through electronic means within a period of
thirty days from the date of dispatch of the notice.
(2) Mode of sending documents: The notice shall be sent
(a) By Registered Post or speed post, or
(b) Through electronic means like registered e-mail id or
(c) Through courier service
Secretarial Standard on postal ballot (Para 16):
1) Every company, except a company having less than or equal to two hundred Members, shall transact items
of business as prescribed, only by means of postal ballot instead of transacting such business at a General
Meeting. Ordinary Business shall not be transacted by means of a postal ballot.
2) Every company having its equity shares listed on a recognised stock exchange other than companies whose
equity shares are listed on SME Exchange or on the Institutional Trading Platform and other companies
which are required to provide e-voting facility shall provide such facility to its Members in respect of those
items, which are required to be transacted through postal ballot
͵Ȍ ǣȋȌ ǢȋȌ
ȋȌǢȋ Ȍ
Company Secretary or where there is no Company Secretary, any Director of the company to conduct postal
ǢȋȌ
ǢȋȌ ǦǢȋȌ Ǧ
reckoning Voting Rights and ascertaining those Members to whom the Notice and postal ballot forms shall be
sent.
Lesson 19 • General Meetings 837
Notice and the advertisement shall clearly mention the cut-off date as on which the right of voting of the Members
shall be reckoned and state that a person who is not a Member as on cut-off date should treat this Notice for
information purposes only.
(4) Notice to be placed on the website:
The notice of the postal ballot shall also be placed on the website of the company forthwith after the notice is
sent to the members.
Such notice shall remain on such website till the last date for receipt of the postal ballots from the members.
(5) Appointment of scrutinizer: The Board of directors shall appoint one scrutinizer, who is not in employment
of the company and who, in the opinion of the Board can conduct the postal ballot voting process in a fair and
transparent manner.
The scrutinizer may be a Company Secretary in Practice, a Chartered Accountant in Practice, a Cost Accountant
in Practice, an Advocate or any other person of repute who is not in the employment of the company and, who
can in the opinion of the Board, scrutinise the postal ballot process in a fair and transparent manner.
ϐ Ǥ
The scrutinizer so appointed may take assistance of a person who is not in employment of the company and
who is well-versed with the e-voting system.
Prior consent to act as a scrutinizer shall be obtained from the scrutinizer and placed before the Board for
noting.
ȋȌ ǣ Postal ballot received back from the shareholders shall be kept in
the safe custody of the scrutinizer and after the receipt of assent or dissent of the shareholder in writing on a
postal ballot, no person shall deface or destroy the ballot paper or declare the identity of the shareholder.
(7) Submission of report of the scrutinizer: The scrutinizer shall submit his report as soon as possible after
the last date of receipt of postal ballots but not later than seven days thereof.
(8) Maintenance of register by the Scrutinizer: The scrutinizer shall maintain a register either manually or
electronically to record their assent or dissent received, mentioning the particulars of the shareholder and
details of postal ballots which are received in defaced or mutilated form and postal ballot forms which are
invalid.
(9) Preservation of postal ballots: The postal ballot and all other papers relating to postal ballot including
voting by electronic means, shall be under the safe custody of the scrutinizer till the chairman considers,
approves and signs the minutes and thereafter, the scrutinizer shall return the ballot papers and other related
papers or register to the company who shall preserve such ballot papers and other related papers or register
safely.
(10) Reply from members: The assent or dissent received after thirty days from the date of issue of notice shall
be treated as if reply from the member has not been received.
(11) Declaration of result: The results shall be declared by placing it, along with the scrutinizer’s report, on the
website of the company.
(12) Resolution deemed to be passed in general meeting: The resolution shall be deemed to be passed on the
date of at a meeting convened in that behalf.
(13) Applicability of Rule 20: The provisions of Rule 20 of Companies (Management and Administration) Rules,
2014 regarding voting by electronic means shall apply, as far as applicable, with the necessary changes to this
rule in respect of the voting by electronic means.
A postal ballot form shall be considered invalid if:
ȋȌ Ǣ
ȋȌ Ǣ
(c) Signature on the postal ballot form doesn’t match the specimen signatures with the company
Lesson 19 • General Meetings 839
ȋȌ Ǣ
ȋȌ Ǣ
(f) Any competent authority has given directions in writing to the company to freeze the Voting Rights of the
Ǣ
ȋȌ Ǣ
ȋȌ ǡ ǡ ϐ
ϐ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
(k) Member has made any amendment to the Resolution or imposed any condition while exercising his vote
(Para 16.5.3 of SS-2).
ϐ
ϐ
passing by means of postal ballot (Para 16.9 of SS-2).
Place:................................
Date:................................. ..................................................
Signature of Shareholder
840 Lesson 19 • EP-CL
ͷͷ;ȋͷͶȌ
ϔ
ǡͷͿ;Ͷǡ Ǥ
In case of Section 8 company – section 118 shall not apply as a whole except that minutes may be recorded within
thirty days of the conclusion of every meeting in case of companies where the articles of association provide for
ϐ Ǧϔ ͻ ǡͶͷͻǤ
ϐ Ȁ ϐ ǦǦ ȋͳͲȌ ͳͳͺ
not apply.
If any default is made in complying with the provisions of Section 118 in respect of any meeting, the company shall
Ǧϐϐ
ϐǤ
If a person is found guilty of tampering with the minutes of the proceedings of meeting, he shall be punishable with
ϐ Ǧϐ
Lesson 19 • General Meetings 841
ȋȌ ϐ ǡ ϐ
which have any adverse effect on the functioning of the company, as mentioned in the report of the
Ǣ
ȋȌ ϐ ǡ
ǡ Ǣ
ȋȌ ϐ Ǣ
(l) In respect of each Resolution, the type of the Resolution, the names of the persons who proposed and
seconded and the majority with which such Resolution was passed. Where a motion is moved to modify
a proposed Resolution, the result of voting on such motion shall be mentioned. If a Resolution proposed
ϐ ǡ
ϐǢ
(m) In the case of poll, the names of scrutinisers appointed and the number of votes cast in favour and
Ǣ
ȋȌ ϐ ǡ
Ǣ
(o) The time of commencement and conclusion of the Meeting.
Minutes of E-Voting and postal ballot:
Para 17.2.2.2 of SS-2 provides that in respect of Resolutions passed by e-voting or postal ballot, a brief report on
the e-voting or postal ballot conducted including the Resolution proposed, the result of the voting thereon and the
summary of the scrutiniser’s report shall be recorded in the Minutes Book and signed by the Chairman or in the
event of death or inability of the Chairman, by any Director duly authorised by the Board for the purpose, within
thirty days from the date of passing of Resolution by e-voting or postal ballot.
Minutes shall be entered in the Minutes Book within thirty days from the date of conclusion of the Meeting.
In case a Meeting is adjourned, the Minutes in respect of the original Meeting as well as the adjourned Meeting shall
be entered in the Minutes Book within thirty days from the date of the respective Meetings.
The date of entry of the Minutes in the Minutes Book shall be recorded by the Company Secretary. Where there is
no Company Secretary, it shall be entered by any other person authorised by the Board or the Chairman. Minutes,
once entered in the Minutes Book, shall not be altered.
844 Lesson 19 • EP-CL
Minutes of a General Meeting shall be signed and dated by the Chairman of the Meeting or in the event of
death or inability of that Chairman, by any Director who was present in the Meeting and duly authorised by
the Board for the purpose, within thirty days of the General Meeting.
The Chairman shall initial each page of the Minutes, sign the last page and append to such signature the date on
which and the place where he has signed the Minutes. Any blank space in a page between the conclusion of the
Minutes and signature of the Chairman shall be scored out.
If the Minutes are maintained in electronic form, the Chairman shall sign the Minutes digitally.
Preservation of Minutes in case of scheme of Merger and Amalgamation
Where, under a scheme of arrangement, a company has been merged or amalgamated with another company,
Minutes of all Meetings of the transferor company, as handed over to the transferee company, shall be preserved
permanently by the transferee company, notwithstanding that the transferor company might have been dissolved.
ȂͷͷȂ Ǥ
Report on Annual General Meeting
Every listed public company shall prepare in the prescribed manner a report on each annual general meeting
ϐ ǡ
the Companies Act, 2013 and the rules made thereunder.
As per Rule 31 of the Companies (Management & Administration) Rules, 2014, the copy of the report prepared in
Ǧ ȋͳȌ ͳʹͳǦȋͳȌǡϐForm No. MGT.15
within thirty days of the conclusion of the annual general meeting along with the fee.
The report in pursuance of the provisions of sub-section (1) of section 121 shall be prepared in the following
manner, namely:-
ȋȌ Ǣ
(b) the report shall be signed and dated by the Chairman of the meeting or in case of his inability to sign, by
any two directors of the company, one of whom shall be the Managing director, if there is one and company
Ǣ
(c) the report shall contain the details in respect of the following, namely:-
ȋȌ ǡǡǢ
ȋȌ ϐ Ǣ
ȋȌ Ǣ
ȋȌ ϐǢ
ȋȌ ϐ ǡ
ǡ Ǣ
ȋȌ Ǣ
ȋȌ ǡǡ Ǣ
(viii) any other points relevant for inclusion in the report.
(d) the Report shall contain fair and correct summary of the proceedings of the meeting.
ϐǦ ȋʹȌ ϐǡ
ǡϐ
ϐ ǡ ϐ
ϐ
Ǧϐ ǡϐ
ϐ ǡ
Lesson 19 • General Meetings 845
The listed entity shall submit to the stock exchange and publish on its website a copy of the annual
report sent to the shareholders along with the notice of the annual general meeting not later than the
day of commencement of dispatch to its shareholders. [Regulation 34 of SEBI (Listing Obligations and
Disclosure Requirements) Regulations, 2015]
7. Where the company has invited public deposits, a copy of the Balance sheet shall be forwarded to the
RBI.
ͺǤ Dz dz
ϐ Ǥ
9. To get the Dividend Warrants and Notice of Dividend signed by authorised persons.
10. To dispatch Dividend Warrants together with the Notice of Dividend to the shareholders within thirty
days of the declaration of dividend after making arrangement with the banker for payment of dividend
warrants at prescribed number of branches at par.
ͳͳǤ ϐ ϐǡǡ ǦȀ Ǧ
with the Registrar of Companies within sixty days of the meeting prepared as at the date of the annual
ǡ ͻʹ ǡʹͲͳ͵Ǥϐ
Secretary shall be in Form MGT-8.
12. To take action on other decisions of the shareholders.
13. If the company is listed then to submit to the stock exchange, within 2 working days of conclusion
ǡ ϐ
(Regulation 44 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015].
LESSON ROUND-UP
• An annual general meeting is required to be held every year by every company other than a One Person
Company (whether public or private, limited by shares or by guarantee, with or without share capital or
unlimited company).
• In case of default is made in holding the annual general meeting of a company under section 96, the
Tribunal may call or direct the calling of an annual general meeting.
• Class meetings are those meetings which are held by holders of a particular class of shares e.g. preference
shares.
• For a General Meeting to be valid, it must be duly convened, properly constituted and the business must
be validly transacted.
• In case of public company the quorum shall depend on number of members as on the date of meeting
personally present in the meeting:-
• If members not more than 1000–quorum shall be 5
• If members more than 1000 but less than 5000- quorum shall be 15
• If members more than 5000- quorum shall be 30
• In case of private company 2 members personally present shall be the quorum of the meeting.
• The central government is vested with the power to prescribe a class or classes of companies whose
members shall not be entitled to appoint another person as a proxy.
848 Lesson 19 • EP-CL
• Chairman plays a very important role in a meeting as he is responsible for successful conduct of a meeting
• A motion becomes a resolution only after the requisite majority of members have adopted it.
• Various methods which may be adopted for taking votes on a motion properly placed before a meeting are
by show of hands, by poll, by postal ballot and by electronic voting.
• ͳͳ ǡ ϐ
for recording within 30 days of its passing at the meeting.
• Every company is required to keep minutes of the proceedings of general meetings and of the meetings
of Board of Directors and its Committees.
GLOSSARY
Book Closure Book closure refers to the time period when a company will not handle adjustments to the
register, or requests to transfer shares. The book closure date is often used to identify the
cut-off date determining which investors of record will be sent a given dividend payment
or the issue of right or bonus shares or issue of shares for conversion of debentures. This
is more relevant in case of physical shares. Also refer Section 91 of Companies Act, 2013.
Suo motu Dzdz
Dz dzDz
been made
TEST YOURSELF
ȋ ǤȌ
1. ͵ͳ ǡʹͲͳͻǤ ϐ
Annual General Meeting. What would be your answer if company incorporated on 1st January, 2020?
2. Some members have joined the meeting but at the time of transacting business items they left before
meeting ends without transacting any business items of the Notice. Does this constitute a valid General
Meeting? List out the points in the light of the provisions of Companies Act, 2013 having regard to Quorum
of General Meeting?
3. List out the persons whom Notice of the General Meeting is to be given. Explain the provisions with
respect to the Notice of the Annual General Meeting.
4. Ram Commodities Private Limited could not hold its 10th annual general meeting for the year 2019-20 by
30th September, 2020. The company sought extension of time for holding the AGM from the Registrar of
Companies but failed to hold the meeting within the extended time too. Instead, it held the meeting on 31st
March, 2021 and passed resolutions thereat. Certain shareholders have challenged the validity of these
resolutions. Referring to the provisions of the Companies Act, 2013, examine whether the contention of
the shareholders shall be tenable.
5. What are the items that constitute Ordinary Business in an Annual General Meeting of a company?
6. Who shall be chairman of a general meeting of a company? What are the provisions of the Companies Act,
2013 regarding his election?
Lesson 19 • General Meetings 849
7. Every Annual General Meeting of a company shall be called on a day which is not a National holiday. Can
an adjourned Annual General Meeting of a company be called on a National holiday?
8. A shareholder having given proxy, personally attends and votes at the meeting. Comment, illustrating a
case law.
9. At a general meeting, two joint holders voted on a resolution. Will the votes of both the joint holders be
accepted?
10. What are the provision of the Companies Act, in regard to the holding of an Extra Ordinary General
Meeting?
11. At a General meeting of a company, a matter was to be passed by a special resolution. Out of 40 members
present, 20 voted in favour of the resolution, 5 voted against it and 5 votes were found invalid. The
remaining 10 members abstained from voting. The Chairman of the meeting declared the resolution as
passed.With reference to the provisions of the Companies Act, 2013, examine the validity of the Chairman’s
declaration?
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
850 Lesson 19 • EP-CL
Lesson 20 Virtual Meetings
Key Concepts One Learning Objectives Regulatory Framework
Should Know
To understand: The Companies Act, 2013
• Virtual Meetings
• Meaning of Virtual Meetings • Section 108- Voting through
• Electronic Mode Electronic Means
• Basic Requirements of
• Video-Conferencing Virtual Meeting • Section 173- Meeting of
Board and its Power
• Audio Visual Mode • Procedure of Board meeting
through video or audio The Companies (Meetings of
conferencing Board and its Powers) Rules,
2014
• Advantages and Challenges
• Rule 3- Meetings of Board
of Virtual Meetings
Through Video
Conferencing or Other
Audio Visual Means
The Companies (Management
and Administration) Rules, 2014
• Rule 20- Voting through
Electronic means
Secretarial Standards
• SS-1- Secretarial Standard
on meeting of Board of
Directors
• SS-2- Secretarial Standard
on General Meetings
The SEBI (LODR) Regulations,
2015
Regulation 44- Meetings of
shareholders and voting
Lesson Outline
• Introduction • Virtual AGM/EGMs
• Virtual Meeting – Meaning • LESSON ROUND-UP
• Virtual Board Meeting • GLOSSARY
• Procedure of Board meeting • TEST YOURSELF
through video or audio • LIST OF FURTHER READINGS
conferencing
• OTHER REFERENCES
• Voting through Electronic
Means in General Meetings
852 Lesson 20 • EP-CL
INTRODUCTION
In the present corporate scenario, companies are increasingly globalized with members spreading out not only in
various parts of country but throughout world disregarding the nature, size and listing status of companies. Rapid
pace of technological advancement facilitates virtual presence of human being to execute complex and important
tasks including legal compliances. Taking advantage of such advancement in information technology, necessary
provisions have been introduced under the Companies Act, 2013 for enabling the directors to participate in the
meetings of board, including committees thereof, through video conferencing or other audio- visual means.
Chapter XII of the Companies Act 2013 deals with
However, an One Person Company, small company,
Board Meeting. Section 173(1) stipulates that
dormant company and a private company (if such private
ϐ
company is a start-up) shall be deemed to have complied
Board of Directors within thirty days of the date of
with the provisions of this section if at least one meeting of
its incorporation and thereafter hold a minimum
the Board of Directors has been conducted in each half of a
number of four meetings of its Board of Directors
calendar year and the gap between the two meetings is not
every year in such a manner that not more than
less than ninety days.
one hundred and twenty days shall intervene
between two consecutive meetings of the Board. In case of Section 8 company - Section 173 (1) shall apply
only to the extent that the Board of Directors, of such
ͳ͵ȋʹȌ ϐ ǡ Companies shall hold at least one meeting within every six
participation of directors in a meeting of the Board calendar months.
may be either in person or through video
conferencing or other audio visual means, as may
be prescribed, which are capable of recording and recognizing the participation of the directors and of recording
and storing the proceedings of such meetings along with date and time.
Similarly, Section 108 of the Companies Act, 2013 provides for Voting through electronic means by the members of
the companies.
Ǧϐ
A meeting held totally by means of either Video conferencing or other audio-visual means is known as Virtual
Meeting. A Virtual meeting is when people around the world, regardless of their location, use video, audio, and text
to link up online. Virtual meetings allow people to share information and data in real-time without being physically
located together.
In virtual meeting there is no physical presence of participants and there is no designated venue for the purpose
of meetings. Participants located at different places participate in the meeting either by teleconference or video
conference or combination of them at predetermined time.
Virtual meetings are becoming an increasingly common aspect at corporate world. When it comes to professional
communication and the way business are done, for most companies, virtual meetings is the fact of life. Companies
today operate across multiple time zones from different countries and continents. Employees, Board Members,
stakeholders and investors are not from any particular region, city or country; in fact they are spread wide and far.
By using Virtual technology, it is possible to replace physical meetings which require the presence of people at the
designated place and time.
With rapid change in technology and wide spread of internet and audio and video combination, which is readily
available, affordable and reliable, many companies and organizations are adopting and favoring virtual meetings.
The use of audio and video conferences, webinars and web meetings via computers, telephones or other devices is
Ǥ ǡǡϐ ǡ
less environmental impact in terms of savings on fuel and transport.
Virtual Meetings are held at a distance in real time basis with the help of digital technology. The meetings are mainly–
1. Audio- and/or video based, such as audio conferencing, video conferencing, and on-line meetings or webinars,
often they are supported by other forms like chat, white boards, document sharing, etc.
Lesson 20 • Virtual Meetings 853
2. Audio conferencing means conference calls with three or more participants, either by connecting the different
participants by using a conference phone, or both.
3. Video conferencing, a technology now a day commonly used in board meetings.
Types of Meeting
Section 173 of Companies Act, 2013 read with Rule 3 of the Companies (Meetings of Board and its Powers)
Rules, 2014 and Secretarial Standards on Board meetings (SS-1) provides a much wanted platform for holding
Virtual Board Meetings.
Ǧͳ ϐ Dz dz in relation to Meetings means Meetings through video conferencing or other
audio-visual means. “Video conferencing or other audio visual means” means audio-visual electronic communication
facility employed which enables all the persons participating in a Meeting to communicate concurrently with each
other without an intermediary and to participate effectively in the Meeting.
“ dzmeans computer hardware, software, and procedure that –
(a) are reasonably secure from unauthorized access and misuse;
(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures.
“Timestamp” means the current time of an event that is recorded by a Secured Computer System and is used to
ϐ ǡǡ
or received. In simple language, Time Stamp means a digital record of the time of occurrence of a particular event.
SS-1 provisions related to Virtual Board Meeting in detail are as under:
Para 1.2.3 provides that any Director may participate through Electronic Mode in a Meeting unless the Act
ϐ
Ǥ
Earlier restriction was levied on Directors to participate through Electronic Mode in the discussion on certain
restricted items prescribed under Rule 4 of the Companies (Meetings of Board and its Powers) Rules, 2014.
ǡϐ ͳͷǡʹͲʹͳͶȋ
and its Powers) Rules, 2014 which was related to the matters not to be dealt with in a meeting through video
conferencing or other audio-visual means.
Accordingly, with the said amendment, now the following previously restricted matters can be considered in a
Board Meeting held through video conferencing or other audio-visual means, namely: -
Ǥ ϐ Ǣ
Lesson 20 • Virtual Meetings 855
However, such declaration shall not debar him from participation in the meeting in person in which
ϐ Ǥ
(f) In the absence of any such intimation from the director, it shall be assumed that the director will attend
the meeting in person.
4. At the commencement of the meeting, a roll call shall be taken by the Chairperson when every director
participating through video conferencing or other audio-visual means shall state, for the record, the following
namely:
(a) name;
(b) the location from where he is participating;
(c) that he has received the agenda and all the relevant material for the meeting; and
(d) that no one other than the concerned director is attending or having access to the proceedings of the
meeting at the location mentioned in (b) above.
5. (a) After the roll call, the Chairperson or the Secretary shall inform the Board about the names of persons
other than the directors who are present for the said meeting at the request or with the permission of
ϐ Ǥ
Explanation: ϐ
other audio-visual means shall be counted for the purpose of quorum, unless he is to be excluded for
any items of business under any provisions of the Act or the Rules.
(b) The Chairperson shall ensure that the required quorum is present throughout the meeting.
6. With respect to every meeting conducted through video conferencing or other audio-visual means authorised
under these rules, the scheduled venue of the meeting as set forth in the notice convening the meeting, shall
be deemed to be the place of the said meeting and all recordings of the proceedings at the meeting shall be
deemed to be made at such place.
7. The statutory registers which are required to be placed in the Board meeting as per the provisions of the Act
shall be placed at the scheduled venue of the meeting and where such registers are required to be signed by
the directors, the same shall be deemed to have been signed by the directors participating through electronic
mode if they have given their consent to this effect and it is so recorded in the minutes of the meeting.
8. (a) Every participant shall identify himself for the record before speaking on any item of business on the
agenda.
(b) If a statement of a director in the meeting through video conferencing or other audio-visual means is
interrupted or garbled, the Chairperson or Company Secretary shall request for a repeat or reiteration
by the director.
9. If a motion is objected to and there is a need to put it to vote, the Chairperson shall call the roll and note the
vote of each director who shall identify himself while casting his vote.
10. From the commencement of the meeting until the conclusion of such meeting, no person other than the
Chairperson, Directors, Company Secretary and any other person whose presence is required by the Board
shall be allowed access to the place where any director is attending the meeting either physically or through
video conferencing without the permission of the Board.
11. (a) At the end of discussion on each agenda item, the Chairperson of the meeting shall announce the
summary of the decision taken on such item along with names of the directors, if any, dissented from
the decision taken by majority and the draft minutes so recorded shall be preserved by the company
ϐ ǦȋͳʹȌǤ
(b) The minutes shall disclose the particulars of the directors who attended the meeting through video
conferencing or other audio-visual means.
ͳʹǤ ȋȌ ϐ
meeting either in writing or in electronic mode as may be decided by the Board.
858 Lesson 20 • EP-CL
(b) Every director who attended the meeting, whether personally or through video conferencing or other
Ǧǡ ϐ ǡ
the proceedings of that particular meeting in the draft minutes, within seven days or some reasonable
time as decided by the Board, after receipt of the draft minutes failing which his approval shall be
presumed.
ȋ Ȍ ǡ ϐ
section 118 of the Act and signed by the Chairperson.
Explanation - For the purposes of this rule, ‘video conferencing or other audio-visual means’ means
audio-visual electronic communication facility employed which enables all the persons participating
in a meeting to communicate concurrently with each other without an intermediary and to participate
effectively in the meeting.
Summarized procedure of Video conferencing:
• Roll call by chairperson;
• Directors to introduce themselves at each and every time they speak on matters;
• Presence will be counted for quorum;
• No unauthorized access;
• Differently abled Director may have person accompanying them;
• Directors to repeat if there is any disturbances;
• Chairperson to announce summary at the end of the Meeting;
• Minutes of the meeting to contain the names of Directors who participated through Video conference.
Voting through Electronic Means in General Meeting under the Companies Act, 2013
Section-108 of the Companies Act, 2013 provides for voting through electronic means. —The Central Government
is empowered to prescribe the class or classes of companies and manner in which a member may exercise his right
to vote by the electronic means.
As per Rule 20 of the Companies (Management and Administration) Rules, 2014, every company which has listed
its equity shares on a recognised stock exchange and every company having not less than one thousand members
shall provide to its members facility to exercise their right to vote on resolutions proposed to be considered at a
general meeting by electronic means.
However, a Nidhi, or an enterprise or institutional investor referred to in chapter XB (Companies listed on SME
exchange) or chapter XC (Companies listed on institutional trading platform without IPO) of the SEBI (Issue of
Capital and Disclosure Requirements) Regulations, 2009 is not required to provide the facility to vote by electronic
means.
“Voting by electronic means” includes “remote e-voting” and voting at the general meeting through an electronic
voting system which may be the same as used for remote e-voting.
“Remote e-voting” means the facility of casting votes by a member using an electronic voting system from a place
other than venue of a general meeting.
ǤʹǤʹǦʹ ǡ Ǧ ǡ
Ǥ
Ballot process may be carried out by distributing ballot/poll slips or by making arrangement for voting through
computer or secure electronic systems.
Any Member, who has already exercised his votes through Remote e-voting, may attend the Meeting but is prohibited
to vote at the Meeting and his vote, if any, cast at the Meeting shall be treated as invalid.
Lesson 20 • Virtual Meetings 859
Virtual AGM/EGM
General meetings, particularly when large numbers of shareholders are involved, can be very expensive and are not
considered to be a cost-effective. Virtual meetings of members have advantages for companies and their shareholders.
Present-day shareholders are spread across the country and also in different countries, and as the AGMs can only
ϐ ǡϐ
the shareholders located in faraway locations and cites to attend the meetings as it involves lot of travel time and
cost. With less participation, the agenda items are often passed without any discussion with fewer members. Virtual
meetings will help in increasing shareholder participation as compared to physical meetings because of improved
access, shareholders who cannot attend in person due to location or other reasons can attend virtually and do not
have to incur the time and costs of travel to a physical meeting.
ǡ ϐ Ǥ
ϐ Ǥ
ǡ ǡϐ
be easier to schedule. It will also eliminate the costs of an in-person meeting, including travel for shareholders and
a company’s directors and management, thereby allowing shareholders more time to attend more meetings in
which they hold shares, as well as minimizing the amount of time that directors and management must spend at
meetings. This in turn will increase the participation of shareholders who would otherwise not attend the meetings.
ϐ ǣ
• Security of the systems used.
• Streaming with quality without interruption.
• Providing with secure login and shareholder authentication for attendance, with ease of access for
shareholders, and remote voting.
• Combined registration, voting and reporting software.
• Customized instant results screen and detailed audit reporting.
• Data Security of Logins and Passwords.
• Allowing the shareholders, the choice of device.
• the technology used must give all shareholders a reasonable opportunity to participate
• the technology must be secure and must provide reasonable measures for verifying/validating those allowed
to attend and vote at the meeting
• The company must provide a digital record of the meeting.
It is pertinent to mention that as per Regulation 44 of the SEBI (LODR) Regulations, 2015 the top 100 listed entities
shall provide one-way live webcast of the proceedings of the annual general meetings.
The top 100 entities shall be determined on the basis of market capitalisation, as at the end of the immediate
ϐ Ǥ
860 Lesson 20 • EP-CL
Voting by electronic means is a facility given to the members of a company to cast their votes on the resolutions
Ǥ Ǧϐ
decision making process of the company. They may or may not attend the meeting physically. Boards in their
ϐ
overall governance process. E-Voting is a further step to encourage corporate democracy and to promote good
corporate governance.
E-voting allows a voter to record his or her secure and secret ballot electronically. E-voting are generally used in
government elections like general elections, state legislative assembly elections etc. and considered as a tool of
effective governance in voting infrastructure. E-voting is a common Internet infrastructure that enables the investors
to vote electronically on resolution of companies. Shareholders normally exercised their votes on resolutions
proposed by companies through postal ballot. If a company decides to pass any resolution by resorting to postal
ballot, it will send a notice to all the shareholders, requesting them to send their assent or dissent in writing on a
postal ballot. The Companies Act, 2013 had ushered in the concept of e-voting to ensure wider shareholder
participation in the decision-making process in companies. The concept has been discussed in earlier chapter.
The COVID -19 pandemic has shifted India towards the digital businesses, wherever possible are working from
home that is now considered a new normal. The MCA and the SEBI has allowed the companies to conduct their
Board meetings as well as hold general meetings virtually.
Practical Situations arising in Meetings through Video-Conferencing
1) How to accommodate the shareholders who wants to ask questions in view of the large attendance
ǫ
A. In the notice to the AGM it may be mentioned that shareholders whoever wants to speak to get
their names registered and it’s also to be mentioned that at the discretion of the Chairman the
speakers will be allowed to speak depending upon the availability of time.
ʹȌ
ǫ
A. In case of VC meetings there is no question of proxy attendance. A shareholder can himself attend
the meeting from wherever he is located. Same applies to the case with e-voting. In case of e-voting
also there is no proxy to vote on behalf of the shareholder.
3) ǫ
ǡ ǫ
A. Yes, place of the meeting shall be provided in the Notice. In case of virtual meetings deemed venue
is to be given.
4) For conduct of AGMs through VC/OAVM, can the Companies mention in their AGM notices that the
Ǥ ǫ
A. Yes, companies can restrict the speakers depending upon the availability of time. The notice calling
for meeting should require the speaker shareholders to register themselves in advance and depending
upon the time availability, it shall be at the discretion of the Chairman to allow the speakers.
In addition, companies may allow recordings to be sent in advance with the permission of the
Chairman and shareholders, in order to avoid scenarios where a speaker shareholder may get
disconnected or have an audio/visual connection issue, thus saving time and effectively maintaining
the decorum of the meeting.
ͷȌ Ǥ
Ǥ
ǫ ǫ
Lesson 20 • Virtual Meetings 861
A. If the number of speaker’s shareholders registering is considerably more, the Chairman should put
a cut-off as it may not be feasible to allow all the registered speakers due to time constraints.
For e.g., giving 3 mins each to 50 registered speakers in a meeting held through VC or OAVM will
prolong the meeting with 150 minutes. Therefore, it is at the discretion of Chairman to decide the
ȋϐ ϐǡ ǤȌ ǦǤ
Ȍ Ȁ
at the time of registering himself as speaker. Can a shareholder refuse to share the question, even
ǡǫ
A. Shareholder may share his query well in advance with the Company so that even if he could not get
connected, his query may be read out and answered. However, the shareholder may prefer to raise
his query at the meeting only and in such case, he need not share his query in advance with the
Company.
7) How can the companies keep registers open for inspection at the AGM held via VC or OAVM, if the
Company does not maintain the registers in electronic form and nor the company has scanned the
ǫ
A. In case the registers are not maintained in an electronic form, the physical registers/documents
should be scanned for uploading in a virtual data room established for the purpose. Login ID and
password can be provided for inspection and it is to be ensured that only view rights are given for
inspection and the registers/documents cannot be deleted, copied or downloaded or the register/
documents may be made available for inspection on a virtual platform (e.g., Zoom, Microsoft teams,
etc.), and displayed in a presentation form. The registers/documents which shall be made available
for inspection in connection with the AGM, shall be made available from the time notice is given till
the conclusion of the meeting.
8) What are the consequences if during the AGM held through VC or OAVM, the Chairman gets
Ǥǫ
ǫ
A. In case, the Chairman of the meeting gets disconnected due to poor connectivity, etc. for 5-10
minutes, it does not necessarily lead to adjournment of the meeting. However, if the Chairman is
unable to join again and depending on the size, structure, dynamics of the company, there are two
options available: either adjourn the meeting or if the meeting so decides elect another Chairman
to proceed with the AGM, the company is required to follow the Articles/Section 104 of the
Companies Act, 2013 and proceed accordingly.
9) Do Shareholders and Directors have any rights to ask recording of AGM conducted through VC or
ǫ
A. Recording of the General Meetings held through VC or OAVM is not mandatory as per law and only
the recorded transcript has to be maintained. Therefore, a shareholder/director cannot ask for the
recording of meeting conducted through VC or OAVM. Even if the company records the meeting its
only for their internal purpose.
10) Do Shareholders and Directors have any rights to ask for the copy of recorded transcript of AGM
ǫ
A. Public companies have to mandatorily upload the recorded transcript on the web site of the
company, if any. In case where a company has no website and has not uploaded the transcript, may
provide a copy of the same to the shareholder who ever has asked for the same. In case of a
private company there is no such requirement of uploading the recorded transcript on the
website of the company. However, even in such cases as a good Governance measure copy of
the recorded transcript may be made available, since there is no confidentiality as such is
involved.
862 Lesson 20 • EP-CL
With respect to every meeting conducted through video conferencing or other audio-visual means
authorised under these rules, the scheduled venue of the meeting as set forth in the notice
convening the meeting, shall be deemed to be the place of the said meeting and all recordings of the
proceedings at the meeting shall be deemed to be made at such place. Therefore, the place of the
Board meeting shall be what is mentioned in the notice calling the Board Meeting.
In case of a board meeting held through VC the venue of the meeting will be a deemed venue.
16) Whether the Interested Director/Related Party Director is required to log out from the meeting
Ȁǫ
A. In case of physical meeting, the Director needs to vacate the room during discussions on the subject
matter of a resolution in which he is a related party. Taking a strict interpretation of the same, one
can say that in case of a meeting being held through VC or OAVM, the Interested Director should
virtually log out during the said discussion and re-log in afterwards.
CASE LAW:
1) Achintya Kumar Barua alias Manju Baruah and Ors.Vs. Ranjit Barthkur Company Appeal (AT) No. 17 of
2018 February 08, 2018
ǣ Ȃ
ǫ
The NCLAT observed that Section 173(2) gives right to a Director to participate in the meeting through video-
Ǧ ϐ
and it would be in the interest of the companies to comply with the provisions in public interest.
• It is clear that the Rules require that the company shall comply with the procedure prescribed for
convening and conducting the Board meetings through video-conferencing or other audio-visual means.
• ǡǡ ϐ
3(2) of the Companies(Meetings of the Board and its Power) Rules, 2014.
• The appellant contented that sub-Rule (2)(e) puts the burden on the Chairperson to ensure that no person
other than the concerned Director is attending and this would not be possible for Chairperson to ensure
in video-conferencing.
• ϐ ǡ
scheme.
Sub-Clause (4)(d) of Rule 3 puts responsibility on the Director participating also. The Chairperson will
ensure compliance of sub-Clause (e) or Clause (2) and the Director will need to satisfy the Chairperson
that Sub-Clause (d) of Clause 4 is being complied.
• Appellants tried to rely on the Secretarial Standard on Meetings of the Board of Directors to submit that
the guidelines are that such participation can be done “if the Company provides such facility”. NCLAT
observed that such guidelines cannot override the provisions under the Rules. The mandate of Section
173(2) read with Rules mentioned above cannot be avoided by the companies.
• Hence, NCLAT came to the conclusion that the provisions of section 173(2) of the 2013 Act are mandatory
and the companies not be permitted to make any deviations therefrom and directed non- applicants
ͳ͵ȋʹȌ ϐ
of Rule 3(3)(e) of the Rules.
864 Lesson 20 • EP-CL
ǧ
• A virtual meeting is when people around the world, regardless of their location, use video, audio, and text
to link up online.
• virtual meeting is a “room” set up online through a website host that allows people from anywhere to
“meet” with each other to share information and network in real-time.
• The Section 173 of Companies Act, 2013 read with Rule 3 of the Companies (Meetings of Board and its
Powers) Rules, 2014 and Secretarial Standards on Board meetings (SS-1) provides a platform for holding
virtual Board Meetings.
• The Director may intimate his intention of participation through Electronic Mode at the beginning of the
Calendar Year also, which shall be valid for such Calendar Year.
• Directors participating through Electronic mode are counted for quorum unless prohibited as per law.
• The chairperson shall ensure that the required quorum is present throughout the meeting.
GLOSSARY
TEST YOURSELF
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation).
ͳǤ ǫ ϐ Ǥ
2. ABC ltd. Wants to hold meeting through electronic mode. As a Company Secretary, detail the procedure to
the Board.
3. What is Video-conferencing ? Can AGM be conducted through Video Conferencing under the Companies
Act, 2013 ?
4. Who can participate in Virtual Meetings ?
5. What are the pros and cons of Virtual Meetings ?
6. ONS Ltd., an unlisted public company, has six directors on the Board with a quorum of 3 directors
physically present for any board meeting. The Company convened a board meeting to approve the annual
ϐ Ǥ
ϐ Ǥ
ϐ ǫ
Lesson 20 • Virtual Meetings 865
Lesson Outline
• Introduction
• Associate and Fellow Company Secretaries
• Disciplinary mechanism
Ȉ
Act, 1980
• Recent Updates
• Guidelines for Advertisement by Company Secretary in Practice
• LESSON ROUND-UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
868 Lesson 21 • EP-CL
INTRODUCTION
ϐͷͲǯǡ
ǡ Ǥ
Ǧǡ ϐ
Ǥ
ǡ
ȋ Ȍǡ
manner. Later in the wake of substantial increase in the number of candidates for GDCS, the Institute of Company
Ͷ ǡͳͻͺ ʹͷ
ǡ ͳͻͷ ȋǤǤ ϐ Ȍ ϐ Ǥ
ǯ ͳ ͳͻͻǤ
In 1980, the Government moved the Company Secretaries Bill, 1980 to convert the Institute into a statutory body.
ϐ
A member is entitled to continue the practice of Company Secretary, whether in India or elsewhere, only after
ϐ Ǥ
Deemed “to be in practice”
Dz dzǡ
ǡǡ ǡȂ
ȋȌ ǡǡ Ǣ
ȋȌ ǡǡ ǡǡ
ǡ Ǣ
ȋ Ȍ Ȃ
ȋȌ ϐǡ ǡ ǡ
ȋ ǡ Ȍ ǡ
ȋȌ ǡ
870 Lesson 21 • EP-CL
REGISTER OF MEMBERS
Ǥ
ǡǣȄ
ȋȌ ǡǡ ǡǢ
ȋȌ Ǣ
ȋ Ȍ ϐ Ǣ
ȋȌ ϐ Ǣ
(e) any other particulars which may be prescribed.
The Council shall cause to be published in the list of members of the Institute as on the 1st day of April of each year.
ǡǡ
be decided by the council from time to time.
Ȅ
ȋȌ Ǣ
ȋȌ Ǣ
ȋ Ȍ Ǣ
ȋȌ ǡ
thereafter has become subject, to any of the disabilities mentioned in section 8, or who for any other reason
Ǥ
The Director (Discipline) shall submit before the Board of Discipline all information and complaints where he is of
ǡ
ȋ Ȍǡ ǡ ȋ Ȍ
Ǥ
Disciplinary Committee
ʹͳ Ǥ
Ǧ ϐ
ϐ ǡ ǡ ǡ ϐ
accountancy.
The Council may constitute more Disciplinary Committees as and when it considers necessary. The Disciplinary
ǡ ǡ ϐǤ
mentioned in the Second Schedule or both the First Schedule and the Second Schedule, it shall afford to the member
ǡǣȄ
ȋȌ Ǣ
ȋȌ ǡϐǢ
ȋ Ȍ ϐϐǡ ϐǤ
ʹʹ Ǧ ȋͳȌ ʹʹ
ǡͳͻͶͻǡ ǡ
ϐ Ǥ
ǡ
ʹͳ ʹͳǡ
from the date on which the order is communicated to him, prefer an appeal to the Authority.
ȋ Ȍ
Committee to the Authority if so authorised by the Council, within ninety days.
ǡϐ
ϐ ϐǤ
ǡ ǡ
Ǧ ȋ͵Ȍ ʹͳǦ ȋ͵Ȍ ʹͳȂ
ȋȌ ϐǡǢ
ȋȌ ǡ ǡ Ǣ
ȋ Ȍ
Ǣ
ȋȌ ϐǤ
order.
ǡͳͻͺͲ
Professional misconduct in relation to members of the Institute is broadly structured under Schedule I and Schedule
ǣ
ȋȌ ȋ ȌǢ
ȋȌ ȋ ȌǢ
ȋ Ȍ ȋ ȌǢ
ȋȌ ȋ ȌǢ
ȋȌ
ȋ ȌǢ
ȋȌ ǡ
ȋ ȌǢ
ȋȌ ȋ ȌǤ
ʹͳǡʹͳǡʹͳǡ
ʹͳǡʹͳƬʹʹ Ǥ
Ǥ ȋ
Ȍ
Part I of the First Schedule to the Act deals with professional misconduct in relation to Company Secretaries in
Ǥ Ǥ ϐ
ǣ
Clause (1)
ǡǦ
Dz
Ǥdz
Lesson 21 • Legal Framework Governing Company Secretaries 873
ϐ
ǯȀ Ǥ
provided such other person is also a Company Secretary in Practice and is in partnership with or is employed by the
Company Secretary in Practice in whose name the work is to be carried out.
This clause read with clause 11 of Part I of the First scheduled does not permit PCS to allow any person to practice
ǡ
Secretary in Practice or is in partnership with or employed by him.
Ȁ ȋȌǡ
Ȁ Ǥ ǡȋȌ
are non members, may become partners of PCS and may be allowed to provide non-attestation services.
Ǥ
Ǥ
Ǥ ϐ Ǥ
Ǥ ϐǤ
Ǥ Ǥ
Ǥ Ǥ
Ǥ Ǥ
Ǯǯ Ǯ ǯ
ʹȋʹȌ Ǥ
Ǥ ϐǡϐǡ
ϐǤ
ǡ Ǥ
ǡ ϐ
Ǥ
874 Lesson 21 • EP-CL
Ȁ Ǥ Ǥ
Dzdz Ǥ
Ȁ ǤǤ
Ǥʹǡ͵ǡͶƬͷ Ȁ ϐ
Clause 1 of Part I of the First Schedule. That is to say a PCS even if he is allowed to be a partner of a Chartered
ǡ ϐǤ
In other words, a CA or CWA who does not hold CP of ICSI, can not issue Secretarial Audit Report by a multidisciplinary
ϐ Ȁʹǡ͵ǡͶǡƬͷ Ǥ
ͳʹʹͲͲǣ
DzͳͺǤǤȄ
ȋͳȌ ȋʹȌǡȋ͵ȌȋͷȌ ǡ
ǡǣ
ȋȌ ǡͳͻͶͻ
ȋǤ͵ͺͳͻͶͻȌǢ
ȋȌ ǡͳͻͷͻ
ȋǤʹ͵ͳͻͷͻȌǢ
ȋ Ȍ ǡͳͻͳȋǤʹͷͳͻͳȌǢǤ
ȋȌ ǡͳͻʹȋǤʹͲͳͻʹȌǢ
ȋȌ ǡʹͲͲȋǤ͵ͷʹͲͲȌǢ
ȋȌ ϐ
Ǧ ȋʹȌ ͵ͺ Ǥ
ȋʹȌ ȋʹȌǡȋ͵ȌȋͷȌ ǡ
ϐ ǡǣ
ȋȌ ǡͳͻͶͻǢ
ȋȌ ǡͳͻͷͻǢ
ȋ Ȍ ǡʹͲͲǢ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ
Ǥdz
Ǥ ȀǡǢ
ͺǤ Ȁ ǡǢ
ͻǤ ǡ
ȀǢ
ͳͲǤ Ȁ
ǡ Ȁ
Ǣ
Ǯ ǯǮ ǯ
ȋȌ Ǥ Ǯ ϐ
ǯ Ǣ
ϐ ϐϐȀ
ϐ Ǣ
ͳͳǤ ϐǤ ǡ
ϐ Ǣ
ͳʹǤ Ǣ
ͳ͵Ǥ
Ǣ
ͳͶǤ Ǣ
ͳͷǤ
Ǥ
Clause (7)
ǡǣ
Dz ǡ
ǡ ǡǡ
Ǥ
ϐ ϐ Ǥdz
Ȃ
ȋȌ Ǣ
ȋȌ Ǯ ǯǢ
ǡ
world had this type of restriction at least to start with. The idea behind this restriction was that advertisement by
ǡ Ǥ
attainment or services under this clause is completely prohibited except where the Company Secretary in Practice
ǡ
ϐǤ
ϐ ǡ
ǡ Ƭ ǡ
Lesson 21 • Legal Framework Governing Company Secretaries 879
Clause (9)
ǡǣ
Dz ǡ ǡ ǡ
ϐ ϐ ǡ
Ǥdz
Which determine remuneration based on results. For instance, if the Company Secretary in Practice were to
ǡ
by an appellate authority, it would be hit by this clause. The fundamental is that the fee should be more related
ϐ
results.
Clause (10)
ǡǣ
Dz
ǣ
Ǥdz
882 Lesson 21 • EP-CL
profession of Company Secretary. This has been provided with a view to ensure the profession develops in its true
Ǥ ǡͳͻͺʹǡ ϐ
ǡ
Ǥ
and status to the profession and a thrust to the concept of Company Secretary in whole-time practice.
ϐ Ǥ
ϐ ǡǤǤǡ Ƭ
ǦǤ
ͳͺȋʹȌ ǡǡ ǡ
ǡǡ ǡǡǡǡ
ϐ
ǡǡǡǤ ͳͺǡ
ǦȋʹȌ ϐ
the Council.
ͳͺȋͳȌ
Ǥ ǣ
ȋȌ Ǥ
ȋȌ Ǥ
ȋȌ ϐ ǤǤǡǤǤǤǡǤǤǤǤ
ȋȌ ϐ Ǧ ǡ Ǧ Ǥ
ȋȌ ǡ Ǥ
ȋȌ
Ƭ ǡ ǡ
ǡ ϐ ǡ
ǡ
ȋϐ
Ȍ Ǥ
ȋȌ ǡ ǦǡǡǤ
ȋȌ Ǥ
ǡDzdz ǣ
ȋȌ ǡȋϐ
ϐȌ ʹͷΨ
Lesson 21 • Legal Framework Governing Company Secretaries 883
the difference is that a salaried lawyer acts for only one client, unlike a lawyer in practice who acts for several
ǡǡǤ
ϐ
the code of conduct. Nevertheless, whether a member is in employment or in practice, his duty to uphold professional
Ǥ
Part II and Part III of the First Schedule to the Act specify certain instances of misconduct to which a Company
Ǥ ʹͳ ǡ
ǯ ǡ
Ǯ ǯ ʹͳϐ
in the Schedule.
Clause (1) of Part II of the First Schedule provides that a member of the Institute (other than member in practice)
ǡǡ ǡϐȄ
Dzǡ ǡ
Ǥdz
ȋʹȌ Ǥ
not share emoluments of the employment with any other person, not even a member. Both direct and indirect
Ǥ ǡ ǡ
ǡ ϐ Ǥ
ȋʹȌ ȋ Ȍ
ǡǡ ǡϐȄ
Dz ǡϐǡ
ǡϐ ǡϐ
ϐ Ǥdz
ϐ
Ǥ
ϐǤ
Clause (3)
ǡȄ
Dzϐ
Ǥdz
Ǥ
clearly disclose in the report or statement, as the case may be, the sources of his information and the premises on
which the forecast is based. He shall further take care that he does not vouch for the accuracy of the forecast.
Ȁǡ
to be true.
Ǥ Ǥ
ǤǤ
ǡǡϐ
ϐǤ
appropriate disclaimer clause.
Clause (4)
ǡȄ
Dz ǡϐ
ϐǢdz
Ǥ
substantial interest in the business enterprise to which the report or statement pertains. That would create a
ϐ Ǥ
Ǥ
ǡ ϐ ϐ Ǥ
Ǯǯ ϐ Ǥ
ǡͳͺ
Ǯ ǯ ϐ ʹͷΨǤ
Ǥ ǡ
ǡ ǡ
Ǥ
Clause (5)
ǡȄ
Dz
ǡ Ǥdz
This clause deals with the paramount duty of a member in practice towards the user of any statement or report. The
clause underlines the need for full and complete disclosure as to make any statement or report with which he is
ǡ Ǥ
him. If the member in practice does not know a material fact, or he has no reason to come to know a material fact
ǡ Ǣ
his considered opinion, there is no reason to disclose them, the onus of defense would be on him to prove that the
Ǧ Ǥ
ǤȀ
ǡǤ
Ǥ ǣ
ǡ
ϐ ǯϐǤ
declaration since incorporation would be half truth. The reader would be made to believe that the company has
888 Lesson 21 • EP-CL
ϐ Ǥ
continuous track record of dividend declaration since incorporation, however since last three years dividend is
Ǥ
Clause (6)
ǡȄ
Dz Ǥdz
This clause deals with non-disclosure by a member in practice of a material misstatement known to him in any
report with which he is concerned.
Clause (7)
ǡǦ
Dz ǡ Ǥdz
Ǥ
Dz dz
Ǥ
Ǥ
Ǯ ǯ
ǡ ǡͳͻͶͻǣ
dz ǡ
reasonably competent and cautious auditor would use. What is reasonable skill, care and caution must depend on
the particular circumstances of each case. An auditor is not bound to be a detective, or, as was said, to approach his
Ǥ Ǧ
Ǥ Ǣ
Ǥ
ǡ Ǥ
Ǥ ǡ
ǡǡ ǡ
ǡ
DzǤ
ǡ Ȁ ϐ
ͳͲȋͳȌǡ Ȁ
ǡ Ǥ
ȋͶȌ
ǣ
Dz ǡ ǡ
Ǥdz
This clause covers defalcation and embezzlement of moneys received in professional capacity by a member and not
in any other capacity. The professional capacity referred to here would cover situations contemplated under Section
ʹȋʹȌ ϐ ͳͺǤ
ǡ ǡ ǡ
Ǥ ǡ Ǥ
ʹͳ ϐ Ǥ
Ǥ
ǡ
ǡ ǡ
Ǥ
ϐ ϐ
ǡǡǤ
Ǥ
Ǥ
ȋͳȌ ǡ
ʹͳǡ ǡ
Disciplinary Committee.
Provided that if the subject matter of a complaint is, in the opinion of the President, substantially the same as
ǡ ϐ
ǡ ǡ Ǥ
ȋʹȌ ʹͳ ǡϐǤ
ȋ͵Ȍ ǡǦ
ȋȌ ǡ ǡ
Ǣ
ȋȌ Ȁ Ǥ
ȋͷȌ ǡ ǡ
ǡ ϐ
ǡ
ϐ Ǥ
ȋȌ
consideration.
ȋͳȌ ǡ
ǡ
Committee.
ȋʹȌ ǡ ǡ
ϐ ǡ
ϐ ϐ
case may be.
ȋ͵Ȍ ǡ ǡ
ϐ ǡ
ϐ ǦǤ
ȋͶȌ ϐ ǡ
Ǥ ǡ
ǡǡǡ ϐǡ ȋͶȌ
ʹͳǤ
ȋͷȌ Ǥ
Recent Updates
Multidisciplinary Firm Ȃ ͳͷ ǡͳͻͺʹ
ȋȌǡʹͲʹͲǦ Ǧ ϐ
ͳͺͳͺ
ǡ ͳͻͺʹǡ
ϐǤ
ͳͺǤ
ȋͳȌ ȋʹȌǡȋ͵ȌȋͷȌ ǡ
ǡǣǦ
ȋȌ ǡ ͳͻͶͻ
ȋǤ͵ͺͳͻͶͻȌǢ
(b) The Institute of Cost and Works Accountants of India established under the Cost and Works Accountants Act,
ͳͻͷͻȋǤʹ͵ͳͻͷͻȌǢ
ȋ Ȍ ǡͳͻͳȋǤʹͷͳͻͳȌǢ
ȋȌ ǡͳͻʹȋǤʹͲͳͻʹȌǢ
ȋȌ ǡʹͲͲȋǤ͵ͷʹͲͲȌǢ
ȋȌ ϐ
Ǧ ȋʹȌ ͵ͺ Ǥ
ͳͺǤ
ȋͶȌȋͷȌ ǡ
ǡǣǦ
ȋȌ ǡͳͻͶͻȋǤ
͵ͺͳͻͶͻȌǢ
(b) The Institute of Cost and Works Accountants of India established under the Cost and Works Accountants Act,
ͳͻͷͻȋǤʹ͵ͳͻͷͻȌǢ
ȋ Ȍ ǡͳͻͳȋǤʹͷͳͻͳȌǢ
ȋȌ
Ǣ
ȋȌ ǡͳͻʹȋǤʹͲͳͻʹȌǢ
ȋȌ ǡ ǡʹͲͲȋǤ͵ͷʹͲͲȌǢ
ȋȌ ϐ
Ǧ ȋʹȌ ͵ͺ Ǥ
ANNEXURE I
(Constituted under the Company Secretaries Act, 1980)
ǤʹͲʹͲ
[Pursuant to Clause (1) of Part II of the Second Schedule to the Company Secretaries Act, 1980 as amended]
ȋ ȌǡʹͲʹͲ1
ȋͳȌ ǡ ͳͻͺͲ ȋͷ ͳͻͺͲȌǡ
ȋȌ ǡʹͲͲǡ
ǣ
1. Introduction
ǡ ȋDz dzȌ ǡ
ͳͻͺͲȋDz dzȌǡ ǡ
Ǥ ϐ
authorised to practise the profession of Company Secretaries.
ϐ
ʹȋʹȌ ǡͳͻͺͲǤ
ǡ ǡ Ǥ
Part I of the First Schedule of the Company Secretaries Act, 1980, enumerates professional misconduct in relation
Ǧ ǣ
(1) Solicits clients or professional work, either directly or indirectly, by circular, advertisement, personal
ǣ
Ȃ
ȋȌ
Ǣ
ȋȌ
Ǥ
ȋʹȌ Ȁ ǡ
ǡ ǡǡ
Ȁ
Ȁ ǣ
Provided that a member in practice of the profession of company secretaries or otherwise may advertise
ǣ
Ǥ ȀȀϐǢ
b. particȀϐȀ Ǥ
The write-up should not be used for solicitation of clients, portrayal of supremacy or tall claims to undermine
other members.
ʹǤ
ȋ ȌǡʹͲʹͲǤ
3. Applicability
ǡ
1. As approved by the Council of the Institute of Company Secretaries of India at its 266th meeting held on 9th January, 2020.
896 Lesson 21 • EP-CL
6. Restrictions
ǣ
ȋȌ ǡͳͻͺͲǢ
ȋȌ Ǣ
ȋȌ Ǣ
ȋȌ ǡ
ȋ ȌǢ
Lesson 21 • Legal Framework Governing Company Secretaries 897
Ǧ
Associate Member
Company Secretaries of India shall be deemed to be the Associate Members
Fellow Member ǡ
ϐ
ϐ ϐ
ϐ ǡ
ǡ Ǥ
member.
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation).
ͳǤ ͷ
Company Secretaries Act, 1980?
ʹǤ ǣ
(a) Board of Discipline
(b) Fellow member
(c) Appellate authority
͵Ǥ Ǧ ȋ
ȌǡʹͲʹͲ
Lesson 21 • Legal Framework Governing Company Secretaries 899
Lesson Outline
• Introduction
• Function of SSB of ICSI
• Need and Scope of Secretarial Standards
• Process of making of Secretarial Standards
• Secretarial Standard 1
• Secretarial Standard 2
• ǧ
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
902 Lesson 22 • EP-CL
INTRODUCTION
The Institute of Company Secretaries of India (ICSI), recognising the need for integration, harmonisation and
standardisation of diverse secretarial practices prevalent in the corporate sector, has constituted the Secretarial
Standards Board (SSB) with the objective of formulating Secretarial Standards.
SSB was constituted in the year 2000. The formulation of SSB is a unique and pioneering step by the Institute of
Company Secretaries of India (ICSI) since there was no such Board or body throughout the world. The purpose
Ǧϐ
setting up international benchmarks.
The SSB comprises of representatives from major industry associations viz, The Federation of Indian Chambers of
Commerce and Industry (FICCI), Confederation of Indian Industry (CII), The Associated Chambers of Commerce &
Industry of India (ASSOCHAM), PHD Chamber of Commerce and Industry, representatives of regulatory authorities,
such as the Ministry of Corporate Affairs, Securities & Exchange Board of India, Reserve Bank of India, Bombay
Stock Exchange, National Stock Exchange of India Ltd. and the sister professional bodies viz. the Institute of
Chartered Accountants of India and the Institute of Cost Accountants of India and eminent members of the Institute
of Company Secretaries of India in employment and in practice.
The scope of SSB is to identify the areas in which Secretarial Standards need to be issued by the Council of ICSI and
to formulate such Standards. SSB also clarify issues, if any, arising out of such Standards and issue guidance notes
ϐ ǡ Ǥ
Functions of the Secretarial Standards Board
The main functions of SSB are:
(i) Formulating Secretarial Standards;
(ii) Clarifying issues arising out of the Secretarial Standards;
(iii) Issuing Guidance Notes; and
(iv) Reviewing and updating the Secretarial Standards / Guidance Notes at periodic intervals.
Need of Secretarial Standards
Companies follow diverse secretarial practices and, therefore, there is a need to integrate, harmonise and standardise
such practices so as to promote uniformity and consistency.
SSB formulates Secretarial Standards taking into consideration the applicable laws, business environment, practical
applicability and the best secretarial practices prevalent.
Secretarial Standards are developed in a transparent manner after extensive deliberations, analysis, research and
after considering the views of corporates, regulators and the public at large.
Scope of Secretarial Standards
Secretarial Standards do not seek to substitute or supplant any existing laws or rules and regulations framed
thereunder but, in fact, seek to supplement such laws, rules and regulations.
Secretarial Standards are issued in conformity with the provisions of the applicable laws. However, if, due to
subsequent changes in the law, a particular Standard or any part thereof becomes inconsistent with such law, the
provisions of the said law shall prevail.
Process of making Secretarial Standards
The following procedure is adopted for formulating and issuing Secretarial Standards:
(i) SSB, in consultation with the Council, determine the areas in which Secretarial Standards need to be formulated
and the priority thereof.
(ii) In the preparation of Secretarial Standards, SSB may constitute Working Groups to formulate preliminary
drafts of the proposed Standards.
Lesson 22 • Secretarial Standards Board 903
(iii) The preliminary draft of the Secretarial Standard prepared by the Working Group is circulated amongst the
ϐǡǤ
(iv) The preliminary draft is then be circulated to the members of the Central Council, as well as to Regional
Councils/ Chapters of ICSI, various professional bodies, Industry Association/Chambers of Commerce,
regulatory authorities such as the Ministry of Corporate Affairs, the Securities and Exchange Board of India,
Reserve Bank of India, Department of Public Enterprises and to such other bodies/organisations as may be
decided by SSB, for ascertaining their views, specifying a time-frame within which such views, comments and
suggestions are to be received.
(v) On the basis of suggestions received on the preliminary draft, an Exposure Draft of proposed Secretarial
Standard will be prepared and published in the “Chartered Secretary”, the journal of ICSI, and placed on the
Website of ICSI for inviting suggestions/comments from public at large.
The exposure draft is also circulated to:
(a) All Council Members
(b) Regional Council/Chapters
(c) Professional Bodies (ICAI/ICoAI)
(d) Chambers of Commerce/Industry Associations
(e) MCA/SEBI/RBI and such other bodies/organisations as may be decided by SSB
(f) All members of the Institute through bulk e-mail/website link etc.
(vi) After taking into consideration the comments received, the draft of the proposed Secretarial Standard is
ϐ Ǥ
ȋȌ ϐ ϐ
with SSB. The Secretarial Standard on the relevant subject is then be issued under the authority of the Council.
Section 118 (10) of Companies Act, 2013 provide that every company shall observe secretarial standards with
ϐ
section 3 of the Company Secretaries Act, 1980 and approved as such by the Central Government.
Hence ICSI has so far issued the following Standards:
• Secretarial Standards on Meetings of Board of Directors (SS-1) (mandatory)
• Secretarial Standards on General Meetings (SS-2) (mandatory)
• Secretarial Standard on Dividend (SS-3) (recommendatory)
• Secretarial Standard on Report of Board of Directors (SS-4) (recommendatory)
ϐ ǤͳͲȀͳȋȌȀͳǡͲ͵ ǡʹͲʹͲϐ ȋȌ
Regulations, 2020 in order to further amend the Company Secretaries Regulations,1982.
Newly inserted Regulation 105A provides Constitution of the Secretarial Standards Committee and the
Auditing Standards Committee
(1) The Council may constitute (a) the Secretarial Standards Committee and (b) the Auditing Standards Committee
as it may deem necessary for the purposes of carrying out the functions of the Institute.
(2) A Committee constituted under sub-regulation (1) shall function under the supervision, control and direction
of the Council.
(3) A member who has any pecuniary interest or perceived to have pecuniary interest, direct or indirect, in any
such matter which is brought up for consideration of the Committee, shall disclose the nature of his interest
in such matter and such disclosure shall be recorded in the proceedings of the Committee.
904 Lesson 22 • EP-CL
(4) The member referred to in sub-regulation (3) shall not take part in any deliberation or decision of the
Committee on such matter.
Explanation - For the purposes of this regulation, “pecuniary interest” means a reasonable likelihood or
ϐ Ǥ
(5) Subject to the provisions of the Act and Regulations, the Committee shall have power to delegate by resolution
passed at meeting, any of its duties and functions to the President or Vice-President or Council Member or
Ǣϐ ǡ
deemed necessary.
ȋȌ ϐ ǡ ǡ ǡ
adjournment, rescheduling, quorum, consideration of resolution and minutes shall be mutatis mutandis
applicable to the meetings of the Committee.
under Section 8 of the Companies Act, 2013 or corresponding provisions of any previous enactment thereof. Such
companies may voluntarily comply with SS-1.
However, Section 8 companies need to comply with the applicable provisions of the Act relating to Board Meetings.
ǡϐ Ǥ ǤǤǤͷͺͶȋȌͳ͵ ǡʹͲͳϐ ϐ
ͷ ǡʹͲͳͷ ͺ
ϐ Ǥ
ǡ ϐ Ǥ ǤǤǤ ͲͺȋȌ Ƭ ǤǤǤ ͻȋȌǡ Ͷ ǡ ʹͲͳǡ
following class of companies are exempted from the applicability of Section 118(10) of the Companies Act, 2013 i.e.
the compliance of Secretarial Standards:
ϐ : An unlisted public company which is licensed to operate by the Reserve Bank
of India or the Securities and Exchange Board of India or the Insurance Regulatory and Development Authority of
India from the International Financial Services Centre located in an approved multi services Special Economic Zone
set-up under the Special Economic Zones Act, 2005 read with the Special Economic Zones Rules, 2006.
ϐ : A private company which is licensed to operate by the Reserve Bank of India or
the Securities and Exchange Board of India or the Insurance Regulatory and Development Authority of India from
the International Financial Services Centre located in an approved multi services Special Economic Zone set-up
under the Special Economic Zones Act, 2005 read with the Special Economic Zones Rules, 2006.
SS-1 is also applicable to Banking Companies, Insurance Companies, Companies engaged in generation or supply of
electricity, and Companies governed by any Special Acts, if incorporated under the Act. However, if the provisions
of these Special Acts such as the Banking Regulation Act, 1949, the Insurance Act, 1938, etc. applicable to these
companies are inconsistent with SS-1, then the provisions of such Special Acts shall prevail.
The principles enunciated in this Standard for Meetings of the Board of Directors are also applicable to Meetings of
Committee(s) of the Board, unless otherwise stated herein or stipulated by any other applicable Guidelines, Rules
or Regulations.
SS-1 is also applicable to the Meetings of Committee(s) of the Board constituted in compliance with the requirements
of the Act. At present, the Act provides for the constitution of following committees of the Board:
(a) Audit Committee
(b) Nomination and Remuneration Committee
(c) Corporate Social Responsibility (CSR) Committee
(d) Stakeholders Relationship Committee
In case any other committee of the Board is constituted voluntarily or pursuant to any other statute or regulations
etc., the company may comply with SS-1 with respect to meetings of such committee(s) as a good governance
practice.
This Standard is in conformity with the provisions of the Act. However, if, due to subsequent changes in the Act, a
particular Standard or any part thereof becomes inconsistent with the Act, the provisions of the Act shall prevail.
ϐ
ϐǣ
“Act” means the Companies Act, 2013 (Act No. 18 of 2013) or any previous enactment thereof, or any statutory
ϐ Ǧ Ǥ
“Articles” means the Articles of Association of a company, as originally framed or as altered from time to time or
applied in pursuance of any previous company law or the Companies Act, 2013.
“Calendar Year” ǤǤ ͳ
and ends on 31st December.
906 Lesson 22 • EP-CL
“Chairman” means the Chairman of the Board or its Committee, as the case may be, or the Chairman appointed or
elected for a Meeting.
“Committee” means a Committee of Directors mandatorily required to be constituted by the Board under the Act.
“Electronic Mode” in relation to Meetings means Meetings through video conferencing or other audio-visual means.
“Video conferencing or other audio- visual means” means audio-visual electronic communication facility employed
which enables all the persons participating in a Meeting to communicate concurrently with each other without an
intermediary and to participate effectively in the Meeting.
“Invitee” means a person, other than a Director and Company Secretary, who attends a particular Meeting by
invitation.
“Maintenance” means keeping of registers and records either in physical or electronic form, as may be permitted
under any law for the time being in force, and includes the making of appropriate entries therein, the authentication
of such entries and the preservation of such physical or electronic records.
“Meeting” means a duly convened, held and conducted Meeting of the Board or any Committee thereof.
“Minutes” means a formal written record, in physical or electronic form, of the proceedings of a Meeting.
“Minutes Book” means a Book maintained in physical or in electronic form for the purpose of recording of Minutes.
“National Holiday” ǤǤʹ ǡ ǤǤͳͷǡ ǤǤʹ
October and such other day as may be declared as National Holiday by the Central Government.
“Original Director” means a Director in whose place the Board has appointed any other individual as an Alternate
Director.
“Quorum” means the minimum number of Directors whose presence is necessary for holding of a Meeting.
“Secretarial Auditordz ϐ ȋȌ
appointed in pursuance of the Act to conduct the secretarial audit of the company.
“Secured Computer System” means computer hardware, software, and procedure that –
(a) are reasonably secure from unauthorized access and misuse;
(a) provide a reasonable level of reliability and correct operation;
(a) are reasonably suited to performing the intended functions; and
(a) adhere to generally accepted security procedures.
“Timestamp” means the current time of an event that is recorded by a Secured Computer System and is used to
ϐ ǡǡ
or received.
ϐ
the Act.
SECRETARIAL STANDARD
ͳǤ
ͳǤͳ
ͳǤͳǤͳ ǡǡǡ
ǡ
ǡ ǡ
ǡ ǡ
ǡǦ ǡǡ
the Articles.
Lesson 22 • Secretarial Standards Board 907
Illustrations
(i) Serially numbering on Calendar Year basis as follows: “1/2015”, “2/2015”, “3/2015” and so
on…. In the next year, numbering would be “1/2016”, “2/2016”, “3/2016” and so on.
ȋȌϐ ǣDzͳȀʹͲͳͷǦͳdzǡDzʹȀʹͲͳͷǦͳdzǡDz͵ȀʹͲͳͷǦͳdz
and so on….or 1/15-16, 2/15-16, 3/15-16 and so on......
(iii) Continuous serially numbering across years: 120th Meeting, 121st Meeting, 122nd Meeting
and so on ……
Here, a company may choose to either count and give continuous numbering from its incorporation
ͳ ǡʹͲͳͷǡ
from which SS-1 became effective.
1.3 Notice
ͳǤ͵Ǥͳ
Ǧ Ǥ
The Notice shall be sent to the postal address or e-mail address, registered by the Director with
the company or in the absence of such details or any change thereto, any of such addresses
ϐ ȋ Ȍ Ǥ
ϐ ǡ
him by such means. However, in case of a Meeting conducted at a shorter Notice, the company
may choose an expedient mode of sending Notice.
Proof of sending Notice and its delivery shall be maintained by the company for such period as
decided by the Board, which shall not be less than three years from the date of the Meeting.
ͳǤ͵Ǥʹ ǡ
Ǥ
ͳǤ͵Ǥ͵ ǡǡǡ
the Meeting.
ͳǤ͵ǤͶ
Ǥ
ǡ ϐ
intimation to the Chairman or the Company Secretary to enable them to make suitable
arrangements in this behalf.
The Director may intimate his intention of participation through Electronic Mode at the
beginning of the Calendar Year also, which shall be valid for such Calendar Year.
The Notice shall also contain the contact number or e-mail address(es) of the Chairman or the
Company Secretary or any other person authorised by the Board, to whom the Director shall
ϐǤ ϐ
Director as above, it shall be assumed that he will attend the Meeting physically.
Illustration:
The Articles of Association of XYZ Ltd. provides that all Notices of the Meetings of the Board and
Committees thereof shall be sent to all the members of the Board/Committees by e-mail or through
speed post or registered post with acknowledgment. Accordingly, the company is sending Notices
through speed post to all Directors.
However Mr. A, Independent Director on the Board of XYZ Ltd. requested the company to send all
ϐ Ǥ
Ǥ ϐ ǡ
of the Meetings through such means to him.
ͳǤ͵Ǥǡ ǡ
ǡ
Ǥ
Agenda and Notes on Agenda shall be sent to all Directors by hand or by speed post or by
registered post or by e-mail or by any other electronic means. These shall be sent to the postal
address or e-mail address or any other electronic address registered by the Director with the
company or in the absence of such details or any change thereto, to any of such addresses
ϐ ȋ Ȍ Ǥ
In case the company sends the Agenda and Notes on Agenda by speed post or by registered
post, an additional two days shall be added for the service of Agenda and Notes on Agenda.
ϐ ǡ
papers shall be sent to him by such means. However, in case of a Meeting conducted at a shorter
Notice, the company may choose an expedient mode of sending Agenda and Notes on Agenda.
Proof of sending Agenda and Notes on Agenda and their delivery shall be maintained by the
company for such period as decided by the Board, which shall not be less than three years from
the date of the Meeting.
The Notice, Agenda and Notes on Agenda shall be sent to the Original Director also at the
address registered with the company, even if these have been sent to the Alternate Director.
However, the mode of sending Notice, Agenda and Notes on Agenda to the original director shall
be decided by the company.
Notes on items of business which are in the nature of Unpublished Price Sensitive Information
may be given at a shorter period of time than stated above, with the consent of a majority of the
Directors, which shall include at least one Independent Director, if any.
For this purpose,* “Unpublished Price Sensitive Information” means any information, relating
to a company or its securities, directly or indirectly, that is not generally available, which upon
becoming generally available, is likely to materially affect the price of the securities and shall,
ordinarily including but not restricted to, information relating to the following: –
ȋȌ ϐ Ǣ
(ii) dividends;
(iii) change in capital structure;
(iv) mergers, de-mergers, acquisitions, delistings, disposals and expansion of business and
such other transactions; and
(v) changes in key managerial personnel.
ȗϔ ȋ ȌǡͶͷͻ
ϐ ͵ͳ ǡʹͲͳͺϐ
ȋ Ȍǡ ͲͳǡʹͲͳͻǤϐ
SS-1 stands revised accordingly.
General consent for giving Notes on items of Agenda which are in the nature of Unpublished
ϐ
ϐ Ǥ
Where general consent as above has not been taken, the requisite consent shall be taken before
the concerned items are taken up for consideration at the Meeting. The fact of consent having
been taken shall be recorded in the Minutes.
Supplementary Notes on any of the Agenda Items may be circulated at or prior to the Meeting but
shall be taken up with the permission of the Chairman and with the consent of a majority of the
Directors present in the Meeting, which shall include at least one Independent Director, if any.
910 Lesson 22 • EP-CL
ͳǤ͵Ǥͺ
ǡ
to understand the meaning, scope and implications of the proposal and the nature
ǡǡ ǡ
earlier disclosed.
Where approval by means of a Resolution is required, the draft of such Resolution shall be
either set out in the note or placed at the Meeting. However, any other decision taken at the
meeting may also be recorded in the Minutes in the form of Resolution.
The items of business that are required by the Act or any other applicable law to be considered
at a Meeting of the Board shall be placed before the Board at its Meeting. An illustrative list of
such items is given at Annexure ‘A’.
ϐ Ǥ
illustrative list thereof is given at Annexure ‘B’.
ͳǤ͵Ǥͻ Ǥ
Numbering shall be in a manner which would enable ease of reference or cross-reference.
ͳǤ͵ǤͳͲ
in the Meeting.
ϐ ϐ
majority of the Directors of the company, unless such item was approved at the Meeting itself
by a majority of Directors of the company.
ͳǤ͵Ǥͳͳ ǡ ǡ
ǡ ǡǡ
Ǥ
If no Independent Director is present, decisions taken at such a Meeting shall be circulated
ϐϐ
Director, if any.
ǡ ϐ
ϐ ǡ
were approved at the Meeting itself by a majority of Directors of the company.
The fact that the Meeting is being held at a shorter Notice shall be stated in the Notice.
ʹǤ
2.1 Meetings of the Board
Ǥ
ϐ Ǥ
ϐ
twenty days between any two consecutive Meetings.
ǡϐ ǡ
one Meeting of the Board in each half of a Calendar Year and the gap between the two Meetings of the
Board is not less than ninety days.
An adjourned Meeting being a continuation of the original Meeting, the interval period in such a case,
shall be counted from the date of the original Meeting.
2.2 Meetings of Committees
Ǥ
Lesson 22 • Secretarial Standards Board 911
͵Ǥͳ Ǥ
Ǥ
͵Ǥʹ
Ǥ ǡ ǡ
Ǥ
For this purpose, a Director shall be treated as interested in a contract or arrangement entered into or
proposed to be entered into by the company:
(a) with any body corporate, if such Director, along with other Directors holds more than two
percent of the paid-up share capital of that body corporate, or he is a promoter, or manager or
ϐ Ǣ
ȋȌ ϐǡ ǡǡ ǡ
ϐǤ
If the item of business is a related party transaction, then he shall not be present at the Meeting,
whether physically or through Electronic Mode, during discussions and voting on such item.
͵Ǥ͵
ǡ
Ǥ
3.4 Meetings of the Board
͵ǤͶǤͳ Ǧ
ǡ ǡ Ǥ
912 Lesson 22 • EP-CL
Any fraction contained in the above one-third shall be rounded off to the next one.
Where the Quorum requirement provided in the Articles is higher than one-third of the total
strength, the company shall conform to such higher requirement.
Total strength for this purpose, shall not include Directors whose places are vacant.
If the number of Interested Directors exceeds or is equal to two-thirds of the total strength, the
remaining Directors present at the Meeting, being not less than two, shall be the Quorum during
such item.
4. Attendance at Meetings
4.1 Attendance register
ͶǤͳǤͳ
Meetings of the Committee.
The pages of the attendance register shall be serially numbered.
If an attendance register is maintained in loose-leaf form, it shall be bound periodically, atleast
once in every three years.
ͶǤͳǤʹ ǣ
date of the Meeting; in case of a Committee Meeting name of the Committee; place of
ǢǢ ǡ
presence, if participating through Electronic Mode.
ͶǤͳǤ͵
through Electronic Mode, if their attendance is recorded in the attendance register and
authenticated ǡ
ǡ
Chairman and the fact of such participation is also recorded in the Minutes.
ǡ ϐ
attendance of such Directors. For this purpose, at the commencement of the Meeting, the
Chairman shall take a roll call. The Chairman or Company Secretary shall request the Director
participating through Electronic Mode to state his full name and location from where he is
participating and shall record the same in the Minutes. The proceedings of such Meetings shall
be recorded through any electronic recording mechanism and the details of the venue, date and
time shall be mentioned.
ͶǤͳǤͶ ϐ
Ǥ
The attendance register may be taken to any place where a Meeting of the Board or Committee
is held.
ͶǤͳǤͷ Ǥ
ǡ
held during the period of his Directorship.
The Company Secretary in Practice appointed by the company or the Secretarial Auditor or the
Statutory Auditor of the company can also inspect the attendance register as he may consider
necessary for the performance of his duties.
A Member of the company is not entitled to inspect the attendance register.
ͶǤͳǤ ϐ
Ǥ
ͶǤͳǤ Ǥ
Where there is no Company Secretary, the attendance register shall be in the custody of any
other person authorised by the Board for this purpose.
ͶǤʹ
Ǥ
ϐ
of the Board held during a period of twelve months with or without seeking leave of absence of the
Board.
914 Lesson 22 • EP-CL
except a Director who is differently abled, provided such Director requests the Board to allow a
ϐ
discussed at the Meeting.
The Chairman shall ensure that the required Quorum is present throughout the Meeting and
at the end of discussion on each agenda item the Chairman shall announce the summary of the
decision taken thereon.
Unless otherwise provided in the Articles, in case of an equality of votes, the Chairman shall
have a second or casting vote.
5.2 Meetings of Committees
ǡ ǡ
Ǥ
ǡ
conduct the Meeting of the Committeǡ Ǥ
Ǥ
The Act requires certain business to be approved only at Meetings of the Board. However, other business that
requires urgent decisions can be approved by means of Resolutions passed by circulation. Resolutions passed
by circulation are deemed to be passed at a duly convened Meeting of the Board and have equal authority.
Ǥͳ
6.1.1 ǡ ǡ
ǡ ǡ
ǡ
Ǥ
An illustrative list of items which shall be placed before the Board at its Meeting and shall not
be passed by circulation is given at Annexure ‘A’.
ǤͳǤʹ Ǧ
ǡ
Resolution for consideration at a Meeting of the Board.
Interested Directors shall not be excluded for the purpose of determining the above one-third
of the total number of Directors.
6.2 Procedure
6.2.1 A Resol ǡ
ǡ Ǥ
ǤʹǤʹ
ǡ ǡ
Ǧ other recognised electronic means.
The draft of the Resolution and the necessary papers shall be sent to the postal address or
e-mail address registered by the Director with the company or in the absence of such details or
ǡ ϐ ȋ Ȍ
registration of the Director.
Proof of sending and delivery of the draft of the Resolution and the necessary papers shall be
maintained by the company for such period as decided by the Board, which shall not be less
than three years from the date of the Meeting.
916 Lesson 22 • EP-CL
ǤʹǤ͵
ǡ
ǡ ǡ
ǡ ǡ ǡ
Director had earlier disclosed and the draft of the Resolution proposed. The note shall
Ǥ
Each Resolution shall be separately explained.
The decision of the Directors shall be sought for each Resolution separately.
Not more than seven days from the date of circulation of the draft of the Resolution shall be
given to the Directors to respond and the last date shall be computed accordingly.
An additional two days shall be added for the service of the draft Resolution, in case the same
has been sent by the company by speed post or by registered post or by courier.
Ǥ͵
Ǥ͵Ǥͳ
ǡǦ
Ǥ
Every such Resolution shall carry a serial number.
ϐ ϐ
in the Articles, the Resolution shall be passed only with the assent of such special majority or
ϐǤ
An Interested Director shall not be entitled to vote. For this purpose, a Director shall be treated
as interested in a contract or arrangement entered or proposed to be entered into by the
company:
(a) with any body corporate, if such Director, along with other Directors holds more than
two percent of the paid-up share capital of that body corporate, or he is a promoter, or
ϐ Ǣ
ȋȌ ϐǡ ǡǡ
ǡϐǤ
Ǥ͵Ǥʹ ǡǡǣ
ȋȌ ϐ ǡ
ȋȌ ǡ
ǡ
ǡ
ǡ
Ǣ
ǡ ϐ
Resolution.
Directors shall signify their assent or dissent by signing the Resolution to be passed by
circulation or by e-mail or any other electronic means.
Directors shall append the date on which they have signed the Resolution. In case a Director
does not append a date, the date of receipt by the company of the signed Resolution shall be
taken as the date of signing.
In cases where the interest of a Director is yet to be communicated to the company, the
ϐ
abstain from voting.
Lesson 22 • Secretarial Standards Board 917
In case not less than one-third of the Directors wish the matter to be discussed and decided at
a Meeting, each of the concerned Directors shall communicate the same before the last date
ϐǤ
ϐ
or dissent, it shall be presumed that the Director has abstained from voting.
If the approval of the majority of Directors entitled to vote is not received by the last date
ϐ ǡ Ǥ
6.4 Recording
ǡǡ Ǥ
Ǥͷ
Ǥ
ϐ Ǥ
7. Minutes
Ǥ͵Ǥͷ
Ǥ
Ǥ
Minutes of the Meetings of any Committee shall be noted at a Meeting of the Board held
immediately following the date of entry of such Minutes in the Minutes Book.
7.4 Finalisation of Minutes
ϐ ǡ
Ǧ
Board or the Committee, as on the date of the Meeting, for their comments.
ϐ ǡ
such means.
Proof of sending draft Minutes and its delivery shall be maintained by the company for such period as
decided by the Board, which shall not be less than three years from the date of the Meeting.
The Directors, whether present at the Meeting or not, shall communicate their comments, if any, in
writing on the draft Minutes within seven days from the date of circulation thereof, so that the Minutes
ϐ ϐǤ
If any Director communicates his comments after the expiry of the said period of seven days, the
Chairman, if so authorised by the Board, shall have the discretion to consider such comments.
In the event a Director does not comment on the draft Minutes, the draft Minutes shall be deemed to
have been approved by such Director.
A Director, who ceases to be a Director after a Meeting of the Board is entitled to receive the draft
Minutes of that particular Meeting and to offer comments thereon, irrespective of whether he attended
such Meeting or not.
Ǥͷ
ǤͷǤͳ
conclusion of the Meeting.
In case a Meeting is adjourned, the Minutes in respect of the original Meeting as well as the
adjourned Meeting shall be entered in the Minutes Book within thirty days from the date of the
respective Meetings.
ǤͷǤʹ
Ǥ
Where there is no Company Secretary, it shall be entered by any other person duly authorised
by the Board or by the Chairman.
ǤͷǤ͵ ǡ ǡ Ǥ
Ǥ
7.6 Signing and Dating of Minutes
ǤǤͳ
Ǥ
Minutes of the previous Meeting may be signed either by the Chairman of such Meeting at any
time before the next Meeting is held or by the Chairman of the next Meeting at the next Meeting.
7.6.2 The Chairman shall initial each page of the Minutes, sign the last page and append to such
Ǥ
Lesson 22 • Secretarial Standards Board 921
Any blank space in a page between the conclusion of the Minutes and signature of the Chairman
shall be scored out.
If the Minutes are maintained in electronic form, the Chairman shall sign the Minutes digitally.
ǤǤ͵ ǡ ǡ ǡ
Standard.
ǤǤͶ ϐǡ ǡ ϐ
ǡ ǡ
ǡ
Ǥ
Proof of sending signed Minutes and its delivery shall be maintained by the company for such
period as decided by the Board, which shall not be less than three years from the date of the
Meeting.
7.7 Inspection and Extracts of Minutes
EFFECTIVE DATE
Ǧͳ ͳ ǡʹͲͳͷǤ
ʹͲͳȋ ͳ ǡʹͲͳȌǤ
Lesson 22 • Secretarial Standards Board 923
If, on receipt of a valid requisition having been made in this behalf, the Board, within twenty-
ǡ Ǧϐ
from the date of receipt of such requisition, the requisitionists may themselves call and hold
the Meeting within three months from the date of requisition, in the same manner in which the
Board should have called and held the Meeting.
Explanatory statement need not be annexed to the Notice of an Extra-Ordinary General
Meeting convened by the requisitionists and the requisitionists may disclose the reasons for
the Resolution(s) which they propose to move at the Meeting.
Such requisition shall not pertain to any item of business that is required to be transacted
mandatorily through postal ballot.
1.2 Notice
ͳǤʹǤͳ Ǥ
ǡ
ǡǡǡǡ ǡ
ϐǤ
In case of a Nidhi, Notice may be served individually only on Members who hold shares of more
than one thousand rupees in face value or more than one percent of the total paid-up share
capital of the company, whichever is less. For other Members, Notice may be served by a public
ϐ
situated and by displaying the same on the Notice Board of the company.
In the case of Members, Notice shall be given at the address registered with the company or
depository. In the case of shares or other securities held jointly by two or more persons, the
ϐ
or the depository, as the case may be. In the case of any other person who is entitled to receive
Notice, the same shall be given to such person at the address provided by him.
Where the company has received intimation of death of a Member, the Notice of Meeting shall
be sent as under:
(a) where securities are held singly, to the Nominee of the single holder;
(b) where securities are held by more than one person jointly and any joint holder dies,
ȋ Ȍ ϐǢ
where securities are held by more than one person jointly and all the joint holders die, to the
Nominee appointed by all the joint holders;
In the absence of a Nominee, the Notice shall be sent to the legal representative of the deceased
Member.
In case of insolvency of a Member, the Notice shall be sent to the assignee of the insolvent
Member.
In case the Member is a company or body corporate which is being wound up, Notice shall be
sent to the liquidator.
ͳǤʹǤʹ
Ǧ ǤǮ
ǯ
ϐ
Ǥ
In case the Notice and accompanying documents are given by e-mail, these shall be sent at the
Members’ e-mail addresses, registered with the company or provided by the depository, in the
manner prescribed under the Act.
ϐ
Lesson 22 • Secretarial Standards Board 929
number of recipients e-mailed and a record of each recipient to whom the Notice has been sent
and copy of such record and any Notices of any failed transmissions and subsequent re-sending
shall be retained by or on behalf of the company as “proof of sending” for such period as decided
by the Board, which shall not be less than three years from the date of the Meeting.
In case of the Directors, Auditors, Secretarial Auditors and others, if any, the Notice and
accompanying documents shall be sent at the e-mail addresses provided by them to the
company, if being sent by electronic means.
Notice shall be sent to Members by registered post or speed post or courier or e-mail and not
by ordinary post in the following cases:
(a) if the company provides the facility of e-voting ;
(b) if the item of business is being transacted through postal ballot.
If a Member requests for delivery of Notice through a particular mode, other than the one
followed by the company, he shall pay such fees as may be determined by the company in its
Annual General Meeting and the Notice shall be sent to him in such mode.
Notice shall be sent to Members by registered post or speed post or e-mail if the Meeting is
called by the requisitionists themselves where the Board had not proceeded to call the Meeting.
ͳǤʹǤ͵ ǡ
Ǥ
In case of a private company, the Notice shall be hosted on the website of the company, if any,
unless otherwise provided in the Articles.
ͳǤʹǤͶ ǡǡǤ
Notice of Annual General Meeting shall also specify the serial number of the Meeting.
Notice shall contain complete particulars of the venue of the Meeting including route map and
prominent land mark, if any, for easy location, except in case of –
i) a company in which only its directors and their relatives are members;
ii) a wholly owned subsidiary.
An Annual General Meeting and a Meeting called by the requisitionists shall be called during
business hours, i.e., between 9 a.m. and 6 p.m., on a day that is not a National Holiday.
ϐ
ǡ ϐ
situated, whereas other General Meetings may be held at any place within India. A Meeting called
ϐ
ǡ ϐ Ǥ
Notice of a company which has a share capital or the Articles of which provide for voting at a
Meeting by Proxy, shall prominently contain a statement that a Member entitled to attend and
vote is entitled to appoint a Proxy, or where that is allowed, one or more Proxies, to attend and
vote instead of himself and that a Proxy need not be a Member.
Illustration:
XYZ Ltd. proposes to enter into a contract with PQR Ltd. Mr. X and Mr. Y, who are promoters
of XYZ Ltd. hold 1.5% and 0.5% of the total paid-up share capital of PQR Ltd. respectively.
In this case, the shareholding of both, Mr. X and Mr. Y should be disclosed in the explanatory
statement of the Notice of General Meeting of XYZ Ltd., since the extent of their shareholding
collectively is not less than two percent of the paid-up share capital of PQR Ltd.
Ǧ Ȁ ϐ
of Directors including Managing Director or Executive Director or Whole - time Director
or of Manager or variation of the terms of remuneration, details of each such Director or
ǡ ǡϐ ǡ ǡ Ǧ
appointment along with details of remuneration sought to be paid and the remuneration last
ǡ ǡϐǡ
the company, relationship with other Directors, Manager and other Key Managerial Personnel
of the company, the number of Meetings of the Board attended during the year and other
Directorships, Membership/ Chairmanship of Committees of other Boards shall be given in the
explanatory statement.
ǡϐ
for appointment as Independent Directors shall be disclosed and in case of re-appointment of
Independent Directors, performance evaluation report of such Director or summary thereof
shall be included in the explanatory statement.
ͳǤʹǤ Ǧ
Ǥ
For the purpose of reckoning twenty-one days clear Notice, the day of sending the Notice and
the day of Meeting shall not be counted. Further in case the company sends the Notice by post
or courier, an additional two days shall be provided for the service of Notice.
In case a valid special Notice under the Act has been received from Member(s), the company
shall give Notice of the Resolution to all its Members at least seven days before the Meeting,
exclusive of the day of dispatch of Notice and day of the Meeting, in the same manner as a Notice
of any General Meeting is to be given.
Where this is not practicable, the Notice shall be published in a vernacular newspaper in the
ϐ
situated, and in an English newspaper in English language, both having a wide circulation in that
district, at least seven days before the Meeting, exclusive of the day of publication of the Notice
and day of the Meeting. In case of companies having a website, such Notice shall simultaneously
be hosted on the website.
932 Lesson 22 • EP-CL
Where Special Notice is required of any Resolution and Notice of the intention to move such
Resolution is received by the company from the prescribed number of Members, such item of
business shall be placed for consideration at the Meeting after giving Notice of the Resolution
to Members in the manner prescribed under the Act.
Any amendment to the Notice, including the addition of any item of business, can be made
provided the Notice of amendment is given to all persons entitled to receive the Notice of the
Meeting at least twenty-one clear days before the Meeting.
1.2.10 ǡ
ϐǡǡȀǤ
1.2.11 Ǥ
If, for reasons beyond the control of the Board, a Meeting cannot be held on the date originally
ϐǡ ǡ ϐ
the original Notice, after giving not less than three days intimation to the Members. The
intimation shall be either sent individually in the manner stated in this Standard or published
in a vernacular newspaper in the principal vernacular language of the district in which the
ϐ ǡǡ
both having a wide circulation in that district.
ʹǤ
2.1 Annual General Meeting
Every company shall, in each Calendar Year, hold a General Meeting called the Annual General Meeting.
ϐ
ϐ ϐ
ϐ ǡ ϐ
Ǥϐ
may be extended by a period not exceeding three months with the prior approval of the Registrar of
ǡ ϐ Ǥ
ϐ ǡǡ
to hold any Annual General Meeting in the Calendar Year of its incorporation.
ʹǤʹ Ǧ
Ǧ
ǡϐǤ
͵Ǥ
͵Ǥͳ Ǥ
Quorum shall be present not only at the time of commencement of the Meeting but also while
transacting business.
Unless the Articles provide for a larger number, the Quorum for a General Meeting shall be:
(a) in case of a public company, –
ȋȌ ϐ
not more than one thousand;
ȋȌ ϐ
ϐǢ
(iii) thirty Members personally present if the number of Members as on the date of the Meeting
ϐǢ
(b) in the case of a private company, two Members personally present.
Where the Quorum provided in the Articles is higher than that provided under the Act, the
Quorum shall conform to such higher requirement.
934 Lesson 22 • EP-CL
ǡ ǡ
Ǥ ϐ
ǡ ǡ ǡ
ǡǡ
in the Articles.
If a poll is demanded on the election of the Chairman, it shall be taken forthwith in accordance with the
provisions of the Act and the Chairman elected on a show of hands shall continue to be the Chairman
of the Meeting until some other person is elected as Chairman as a result of the poll, and such other
person shall be the Chairman for the rest of the Meeting.
7. Voting
7.1 Proposing a Resolution at a Meeting
ǡ Ǧ
ǡ
Ǥ
Ǥʹ Ǧ
ǤʹǤͳ
Ǥ
Other companies presently prescribed are companies having not less than one thousand
Members.
Nidhis are not required to provide e-voting facility to their Members.
The facility of Remote e-voting does not dispense with the requirement of holding a General
Meeting by the company.
7.2.2 Voting at the Meeting
ǡ Ǧ ǡ
Ǥ
Ballot process may be carried out by distributing ballot/poll slips or by making arrangement
for voting through computer or secure electronic systems.
Any Member, who has already exercised his votes through Remote e-voting, may attend the
Meeting but is prohibited to vote at the Meeting and his vote, if any, cast at the Meeting shall be
treated as invalid.
A Proxy can vote in the ballot process.
Ǥ͵ s
ǡǡǡ
Ǧǡϐ ǡ
demanded.
A Proxy cannot vote on a show of hands.
In case of a private company, the voting by show of hands shall be in accordance with this para, unless
otherwise provided in the Articles.
7.4 Poll
Ǥ
Poll in such cases shall be through a Ballot process.
While a Proxy cannot speak at the Meeting, he has the right to demand or join in the demand for a poll.
The poll may be taken by the Chairman, on his own motion also.
ǡ ǡ
Ǥ
Every Member entitled to vote on a Resolution and present in person shall, on a show of hands,
have only one vote irrespective of the number of shares held by him.
A Member present in person or by Proxy shall, on a poll or ballot, have votes in proportion to
his share in the paid up equity share capital of the company, subject to differential rights as to
voting, if any, attached to certain shares as stipulated in the Articles or by the terms of issue of
such shares.
Preference shareholders have a right to vote only in certain cases as prescribed under the Act.
I ǡ ǡ
Ǥ
ǡ ϔ
Ǥ
ǤͷǤʹ
Ǥ
ǡ
Resolution.
ǣ
ȋȌ Ǣ
ȋȌ ǡ
other than those contract or arrangements referred in clause (a).
7.6 Second or Casting Vote
ǡǡ
ǡ
Ǥ
Where the Chairman has entrusted the conduct of proceedings in respect of an item in which he is
interested to any Non-Interested Director or to a Member, a person who so takes the Chair shall have
a second or casting vote.
ͺǤ Ǧ
ͺǤͳ cǦ
Ǥ
ͺǤʹ Ǧ ǡ
Ǥ
ͺǤ͵ ǦǤ
The voting period shall close at 5 p.m. on the day preceding the date of the General Meeting.
ͺǤͶ
The Board shall:
ȋȌ Ǧ Ǣ
The scrutiniser(s) may be a Company Secretary in Practice, a Chartered Accountant in Practice,
a Cost Accountant in Practice, or an Advocate or any other person of repute who is not in the
employment of the company and who can, in the opinion of the Board, scrutinise the e-voting
process or the ballot process, as the case may be, in a fair and transparent manner.
The scrutiniser(s) so appointed may take assistance of a person who is not in employment of
the company and who is well-versed with the e-voting system.
940 Lesson 22 • EP-CL
Prior consent to act as a scrutiniser(s) shall be obtained from the scrutiniser(s) and placed
before the Board for noting.
ȋȌ Ǣ
ȋ Ȍ Ǧ
entitled to Voting Rights;
The cut-off date for determining the Members who are entitled to vote through Remote e-voting
ϐ
Meeting.
Only Members as on the cut-off date, who have not exercised their Voting Rights through Remote
e-voting, shall be entitled to vote at the Meeting.
8.5 Notice
ͺǤͷǤͳ ǡ Ǧ ǡ
Ǧ Ǥ
An advertisement containing prescribed details shall be published, immediately on completion of
despatch of Notices for Meeting but at least twenty one days before the date of the General Meeting, at
least once in a vernacular newspaper in the principal vernacular language of the district in which the
ϐ
once in English language in an English newspaper, having country-wide circulation, and specifying
therein, Ǧ the following matters, namely :
(a) A statement to the effect that the business may be transacted by e-voting;
(b) The date and time of commencement of Remote e-voting;
(c) The date and time of end of Remote e-voting;
(d) The cut-off date as on which the right of voting of the Members shall be reckoned;
(e) The manner in which persons who have acquired shares and become Members after the
despatch of Notice may obtain the login ID and password;
(f) The manner in which company shall provide for voting by Members present at the Meeting;
(g) The statement that :
(i) Remote e-voting shall not be allowed beyond the said date and time;
(ii) A Member may participate in the General Meeting even after exercising his right to vote
through Remote e-voting but shall not be entitled to vote again; and
(iii) A Member as on the cut-off date shall only be entitled for availing the Remote e-voting
facility or vote, as the case may be, in the General Meeting;
(h) Website address of the company, in case of companies having a website and Agency where
Notice is displayed; and
(i) Name, designation, address, e-mail ID and phone number of the person responsible to address
the grievances connected with the e-voting.
Advertisement shall simultaneously be placed on the website of the company till the conclusion of
Meeting, in case of companies having a website and of the Agency.
ͺǤͷǤʹ ǡ
ǡ Ǥ
Such Notice shall remain on the website till the date of General Meeting.
ͺǤͷǤ͵ Ǧǡ
Ǥ
Lesson 22 • Secretarial Standards Board 941
Notice shall clearly state that the company is providing e-voting facility and that the business may be
transacted through such voting.
Notice shall describe clearly the Remote e-voting procedure and the procedure of voting at the General
Meeting by Members who do not vote by Remote e-voting.
Notice shall also clearly specify the date and time of commencement and end of Remote e-voting and
contain a statement that at the end of Remote e-voting period, the facility shall forthwith be blocked.
ϐ
with voting by electronic means.
Notice shall clearly specify that any Member, who has voted by Remote e-voting, cannot vote at the
Meeting.
Notice shall also specify the mode of declaration of the results of e-voting. Notice shall also clearly
mention the cut-off date as on which the right of voting of the Members shall be reckoned and state
that a person who is not a Member as on the cut off date should treat this Notice for information
purposes only.
Notice shall provide the details about the login ID and the process and manner for generating or
receiving the password and for casting of vote in a secure manner.
8.6 Declaration of results
ͺǤǤͳ ȋȌ
ǡ
ǡ
Ǥ
ͺǤǤʹ ǡ ǡ
ϐ ϐ
ϐ ǡǡ ϐ Ǥ ǡ
ǯ ǡ
ǡ Ǥ
ͺǤǤ͵ ǡǡ
Ǥ
ͺǤ ǯǡ
ǯǡ ȋȌ
purpose.
9. Conduct of Poll
ͻǤͳ ǡ
ϐ ǡ ǡ
ǡ ǡ
ǦǤ
ͻǤʹ ǡ ǡ ǡ
Ǥ
Ǥ
If the date, venue and time of taking the poll cannot be announced at the Meeting, the Chairman shall
inform the Members, the modes and the time of such communication, which shall in any case be within
twenty four hours of closure of the Meeting.
A Member who did not attend the Meeting can participate and vote in the poll in such cases.
In case of a private company, the demand and conduct of poll shall be as stated above, unless otherwise
provided in the Articles.
942 Lesson 22 • EP-CL
ͻǤ͵ Ǥ
One ballot paper may be used for more than one item.
9.4 Appointment of scrutinisers
ǡ ǡ
ǡ ǡ
ǡ ǡ
Ǥ
In case of a private company, the appointment of scrutiniser(s) shall be in accordance with this para,
unless otherwise provided in the Articles.
9.5 Declaration of results
ͻǤͷǤͳ ȋȌ
ǡ
ǡ
Ǥ
In case Chairman is not available, for such purpose, the report by the scrutiniser shall be
submitted to a person authorised by the Chairman to receive such report, who shall countersign
the scrutiniser’s report on behalf of the Chairman.
The result shall be announced by the Chairman or any other person authorised by the Chairman
in writing for this purpose.
The Chairman of the Meeting shall have the power to regulate the manner in which the poll shall
be taken and shall ensure that the poll is scrutinised in the manner prescribed under the Act.
ADJOURNED
MEETING Ȉ
Ȉ
Ȉ
Ȉ
Ȉ
Ǥ
Ǥ
MEETING Ȉ MEETING IS VALID. MEETING STAND
ADJOURNED CANCELLED
An adjourned Annual General Meeting, adjourned for want of quorum or otherwise, shall not be held
ǡϐ
is included in the agenda of such adjourned Meeting.
The company shall ensure compliance of the provisions of holding the Annual General Meeting every
year, including adjournment thereof within a gap of not exceeding 15 months from the date of the
previous Annual General Meeting or within such extended period permitted by the Registrar of
Companies.
16.2
Ǧ
Lesson 22 • Secretarial Standards Board 945
of the company is situated, and having a wide circulation in that district, and at least once
in English language in an English newspaper having a wide circulation in that district, about
having dispatched the Notice and the ballot papers.
ͳǤͶǤʹ ǡ
Ǥ
Such Notice shall remain on the website till the last date for receipt of the postal ballot forms
from the Members.
ͳǤͶǤ͵ ǡǡ
Ǥ
Notice shall also specify the mode of declaration of the results of the voting by postal ballot.
ͳǤͶǤͶ Ǧ ǡ
ǡ Ǥ
In case the facility of e-voting has been made available, the provisions relating to conduct of
e-voting shall apply, mutatis mutandis, as far as applicable.
Notice shall describe clearly the e-voting procedure.
Notice should also mention the Internet link of e-voting platform.
Notice shall also clearly specify the date and time of commencement and end of e-voting, if any
and contain a statement that voting shall not be allowed beyond the said date and time. Notice
ϐ
with the e-voting for postal ballot.
Notice shall clearly specify that any Member cannot vote both by post and evoting and if he
votes both by post and e-voting, his vote by post shall be treated as invalid.
The advertisement shall, inter alia, state the following matters:
(a) a statement to the effect that the business is to be transacted by postal ballot which may
include voting by electronic means;
(b) the date of completion of dispatch of Notices;
(c) the date of commencement of voting (postal and e-voting);
(d) the date of end of voting (postal and e-voting);
(e) the statement that any postal ballot form received from the Member after thirty days
from the date of dispatch of Notice will not be valid;
(f) a statement to the effect that Member who has not received postal ballot form may apply
to the company and obtain a duplicate thereof;
(g) contact details of the person responsible to address the queries/ grievances connected
with the voting by postal ballot including voting by electronic means, if any; and
(h) day, date, time and venue of declaration of results and the link of the website where such
results will be displayed.
Notice and the advertisement shall clearly mention the cut-off date as on which the right of
voting of the Members shall be reckoned and state that a person who is not a Member as on the
cut-off date should treat this Notice for information purposes only.
ͳǤͶǤͷ
ǡ
cision thereon.
Lesson 22 • Secretarial Standards Board 947
Where a motion is moved to modify a proposed Resolution, the result of voting on such
Ǥ ϐ
ǡ ϐ
Resolution.
ȋȌ ǡ
Ǥ
ȋȌ ϐ ǡ
Ǥ
(o) The time of commencement and conclusion of the Meeting.
ͳǤʹǤʹǤʹ ǦǡǦ
ǡ
ǯ
ǡ
ǡ
ǦǤ
17.3 Recording of Minutes
ͳǤ͵Ǥͳ Ǥ
The Company Secretary shall record the proceedings of the Meetings. Where there is no
Company Secretary, any other person authorised by the Board or by the Chairman in this
behalf shall record the proceedings.
The Chairman shall ensure that the proceedings of the Meeting are correctly recorded.
The Chairman has absolute discretion to exclude from the Minutes, matters which in his opinion
are or could reasonably be regarded as defamatory of any person, irrelevant or immaterial to
the proceedings or which are detrimental to the interests of the company.
ͳǤ͵Ǥʹ ǡ Ǥ
Minutes shall be written in third person and past tense. Resolutions shall however be written
in present tense.
Minutes need not be an exact transcript of the proceedings at the Meeting.
ͳǤ͵Ǥ͵ Ǥ
Numbering shall be in a manner which would enable ease of reference or cross-reference.
1ǤͶ ook
ͳǤͶǤͳ
conclusion of the Meeting.
In case a Meeting is adjourned, the Minutes in respect of the original Meeting as well as the
adjourned Meeting shall be entered in the Minutes Book within thirty days from the date of the
respective Meetings.
17.4.2 Th
Ǥ
Where there is no Company Secretary, it shall be entered by any other person authorised by
the Board or the Chairman.
ͳǤͶǤ͵ ǡ ǡǤ
17.5 Signing and Dating of Minutes
1ǤͷǤͳ
ǡ
ǡ
General Meeting.
Lesson 22 • Secretarial Standards Board 951
17.5.2 The Chairman shall initial each page of the Minutes, sign the last page and append to
Ǥ
Any blank space in a page between the conclusion of the Minutes and signature of the Chairman
shall be scored out.
If the Minutes are maintained in electronic form, the Chairman shall sign the Minutes digitally.
17.6 Inspection and Extracts of Minutes
ͳǤǤͳ
Ǥ
Minutes of all General Meetings shall be open for inspection by any Member during business
hours of the company, without charge, subject to such reasonable restrictions as the company
may, by its Articles or in General Meeting, impose so, however, that not less than two hours in
each business day are allowed for inspection.
The Company Secretary in Practice appointed by the company, the Secretarial Auditor, the
Statutory Auditor, the Cost Auditor or the Internal Auditor of the company can inspect the
Minutes as he may consider necessary for the performance of his duties.
Inspection of Minutes Book may be provided in physical or in electronic form.
ǡ ϐ
company authorised by the Company Secretary to facilitate inspection shall take all precautions
to ensure that the Minutes Book is not mutilated or in any way tampered with by the person
inspecting.
ͳǤǤʹ Ǥ
ǡ
ǡ ϐ
Ǥ
When a Member requests in writing for a copy of any Minutes, which he is entitled to inspect, the
company shall furnish the same within seven working days of receipt of his request, subject to payment
ϐ Ǥ
of the Minutes in electronic form, in respect of any previous General Meetings held during a period
ϐ ǡ
fee as prescribed under the Act.
ǡ ϐ
ǡϐ
in this behalf, may be provided in physical or electronic form.
ͳͺǤ
ͳͺǤͳ
Timestamp.
Where, under a scheme of arrangement, a company has been merged or amalgamated with another
company, Minutes of all Meetings of the transferor company, as handed over to the transferee company,
shall be preserved permanently by the transferee company, notwithstanding that the transferor
company might have been dissolved.
ͳͺǤʹ ϐ ǡ ǯ
ϐ
ǡ Ǥ
ϐ ǡ ǯ ǡ
over to the transferee company, shall be preserved in good order in physical or electronic form for
ϐ ǡ
thereafter with the approval of the Board and permission of the Central Government, where applicable.
952 Lesson 22 • EP-CL
Ǧ
• The scope of SSB is to identify the areas in which Secretarial Standards need to be issued by the Council of
ICSI and to formulate such Standards.
• SSB formulates Secretarial Standards taking into consideration the applicable laws, business environment,
practical applicability and the best secretarial practices prevalent.
• Secretarial Standards are developed in a transparent manner after extensive deliberations, analysis,
research and after considering the views of corporates, regulators and the public at large.
• The exposure draft is circulated to all Council Members, Regional Council/Chapters, Professional Bodies
(ICAI/ICoAI), Chambers of Commerce/Industry Associations, MCA/SEBI/RBI and such other bodies/
organisations as may be decided by SSB, all members of the Institute through bulk e- mail/ website link etc.
Ȉ ϐ ϐ
consultation with SSB. The Secretarial Standard on the relevant subject will then be issued under the
authority of the Council.
• Section 105A provides Constitution of the Secretarial Standards Committee and the Auditing Standards
Committee.
Meetings Gathering of two or more people that has been convened for the purpose of achieving
a common goal through verbal interaction, such as sharing information or reaching
agreement.
ȋ ǤȌǤ
1. What is the process of formulating Secretarial Standards?
2. What are the functions of Secretarial Standards Board?
3. What is the need and scope of Secretarial Standard?
954 Lesson 22 • EP-CL
• https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
• https://www.icsi.edu/media/webmodules/Final_SS-1.pdf
• https://www.icsi.edu/media/webmodules/Final_SS-2.pdf
• https://www.icsi.edu/media/webmodules/GN_on_Meetings_of_BOD_3122020.pdf
• https://www.icsi.edu/media/webmodules/GN_on_General_Meetings_31122020.pdf
Lesson 23 Mega Firms
Key Concepts One Learning Objectives Regulatory Framework
Should Know
To understand: • The Companies Act, 2013 &
• Firm Rules made thereunder
• Mega Firm • Concept of Multidisciplinary
/ Mega Firm • The Company Secretaries
• PCS
Act, 1980
• Risk Assessment • ǡϐ
• Audit Valuation expertize required • The Company Secretaries
• Quid Pro Quo Regulations, 1982
• Proprietor
Lesson Outline
• Introduction
• Adoption of Mode of Practice
• Applicable Rules, Regulations and Guidelines for PCS or Firm of
PCS
• Ȁϐǫ
• Pre-requisites of Mega Firm
• ϐ
• Risks of Mega Firm
• Process of Constitution
• Management of Firms
• Revenue Sharing Models
• LESSON ROUND UP
• GLOSSARY
• TEST YOURSELF
• LIST OF FURTHER READINGS
• OTHER REFERENCES
956 Lesson 23 • EP-CL
INTRODUCTION
In a rapidly changing economy, industrial environment and emergence of the need for corporate governance and
ethical business practices of voluntary disclosures, role of a practicing company secretary has also changed
substantially over last three decades. Company Secretary in Practice has become a crucial player. The stakeholders
are becoming vigilant towards the compliances. It is the prime duty of a professional to meet the expectations of the
stakeholders at any given point of time.
The Company Secretaries profession has also obtained new dimensions from being conscience keeper to compliance
ϐ ǡ ǡǡ Ǥ
ϐ
for the success and sustainable growth. The Company Secretaries to assume the leadership position with new role,
values and approach. It is now imperative for Company Secretaries to act as catalyst for change and, help decision
makers in setting the direction of corporate to achieve excellence.
The Companies Act, 2013, so also Insolvency and Bankruptcy Code 2016, has considerably enhanced the role and
responsibilities of Company Secretaries both in employment and in practice. Company Secretary is a key
ǡ ϐ
and certifying the company’s compliance with the provision of the Act.
Lets now discuss certain features of the two forms of enterprise a practicing professional may choose i.e.
Partnership Firm (including LLP) & Sole Proprietor:
1 Various avenues of practice, un-trodden areas Likely to get restricted to the “Routine” procedural
can be explored. matters.
2 Knowledge management becomes easier as ϐ
partners can help each other in their respective only person. No other person is available to support/
areas of expertize. guide. Keeping track of latest developments, case law,
ϐ ǡ Ǥ
3 Inherent risks associated with the practice are Risk bearing has to be shouldered by one person. No
shared with others. one available to share the risks.
4 Several partners can render multi- dimensional ϐ
services. services say under GST, Income Taxes, FEMA along
with Company Law.
5 Partners inter-se should have full faith & trust. Not relevant since it is ‘one man show’.
6. Frequencies of the partners should match. It is Not relevant since it is ‘one man show’.
desirable that their family background, culture,
political thinking should be more or less similar.
7. Freedom of decision making gets restricted. Not required. Proprietor is his own master. No need to
consult others.
8. All partners should be mentally prepared to Not required. Proprietor is his own master. No need to
share revenues. share revenues.
9. One is responsible to the wrongs & liabilities of Not relevant since it is ‘one man show’.
his partners.
10. There should not be communication gap inter- Not relevant since it is ‘one man show’.
se
11 One of the partners can afford to become ϐ Ȁ
Resolution Professional (RP )/valuer . while simultaneously handing routine practice as PCS.
(ix) Guidelines for peer review of attestation services by Practising Company Secretaries
(x) Guidelines for professional dress of Company Secretaries
(xi) Guidelines for setting up and Conversion of Firms of PCS into LLP.
ȋȌ ϐ ȋ Ȍ ǡʹͲͳͻǤ
WHAT IS MULTIDISCIPLINARY/MEGA FIRM?
ϐϐǤϐ
professional service of a particular profession along with the allied and ancillary service with equal competence
ϐǤ ǡ
Secretaries, however, they can acquire expertize in any other area like direct- indirect taxation, labour laws,
ǡ ϐ ǡ ǡ ǡ
provide single window business solutions.
Multidisciplinary Firm – According to Regulation 165A of The Company Secretaries Regulations, 1982 inserted by
ȋȌǡʹͲʹͲǦ Ǧ ϐ
with the member of other professional bodies as prescribed under regulations 168A and 168B of The Company
Secretaries Regulations, 1982, in accordance with the regulating guidelines of the Council for functioning and
ϐǤ
Regulation 168B of Company Secretaries Regulations, 1982 determines the membership of professional body for
partnership. Accordingly, for the purposes of entering into partnership under clauses (4) and (5) of Part I of the
First Schedule to the Act, a person shall be a member of any of the following professional bodies, namely :-
• The Institute of Chartered Accountants of India established under the Chartered Accountants Act, 1949 (No. 38
ͳͻͶͻȌǢ
Lesson 23 • Mega Firms 959
• The Institute of Cost and Works Accountants of India established under the Cost and Works Accountants Act,
ͳͻͷͻȋǤʹ͵ͳͻͷͻȌǢ
Ȉ ǡͳͻͳȋǤʹͷͳͻͳȌǢ
• The Institute of Engineers or Engineering from a University established by law or an institution recognized
Ǣ
Ȉ ǡͳͻʹȋǤʹͲͳͻʹȌǢ
Ȉ ǡ ǡʹͲͲȋǤ͵ͷʹͲͲȌǢ
Ȉ ϐ
recognized by the Council under Sub-section (2) of Section 38 of the Act.
ϐϐǤ
ϐǫ
Keeping in view of the present needs of the corporate and multi dimensional growth of CS profession especially in
the areas of practicing in the areas of Corporate Laws, Labour laws, RBI/ FEMA, acting as Secretarial Auditor,
Resolution Professional or GST Practitioner, there is a need to structure and build the Multidisciplinary (MDF)/
ϐǤ ϐǡ
Ǥ ϐǤ
quality service since even if one of the Partners is not available for consultancy they can bank on the others.
Ȁϐǡ Ǥ
PRE REQUISITES
MDF is a joint or collaborative venture amongst independent individuals. Therefore, every one wishing to join
hands should understand that:
ͳǤ Ǣ
ʹǤ Ǣ
͵Ǥ Ǣ
ͶǤ Ǣ
ͷǤ Ǣ
Ǥ Ǣ
Ǥ ϐǢ
ͺǤ ϐ Ǥ
crack in the above stated pre requisites ruin the things.
BENEFITS
The nature of a multidiscipϐ Ǥ ϐ ǡ
in close proximity to one anoǡ ϐǤ ǡ
this spirit of working together creates greater opportunity for collaboration so the total needs of the client are best
met.
• Working in a team environment: The concept of MDF will have an opportunity to work with team members
who share interests, expertize, ideas, and work ethically.
• Exposure to various and different works: Every client has different expectations, needs, audience,
products and services, so consultants get to oversee projects of all kinds. In MDF being more than two
partners having different experience in different fields the apprentice and employee will have an
exposure to various and different works. With each partners specialized knowledge the MDF may venture
into new areas of practice.
960 Lesson 23 • EP-CL
• Cost effective: With large investment budgets, the MDF not only creates state-of-the-art training facilities,
they also may have much more developed infrastructure, processes and tools which can make your life less
stressful when trying to sell or deliver a project. The overheads and the risks get distributed amongst the
partners.
• Exceptional training and on-boarding: MDF provides an opportunity to have a good training facilities
whether on job training or off job training to get things started off on the right foot. The goal of on job training
or off job training is to set you up for success, so during this training you can expect to receive the resources,
knowledge, and tools to do so.
• Continuous learning: The partners of MDF having multi dimensional experience they can impart continuous
training by adapting to new trends in the Profession. The great thing about staying on your toes is that clients
appreciate it because you’ll be able to develop relevant and successful ideas. Though it might sound
overwhelming to always be on top of news and trends, it will eventually become habit – and the results are
worth it!
• Big growth opportunities: With the right work ethic and dedication, MDF can experience professional
ϐǤ Ǥ
ǡϐǤ
partners can concentrate on critical assignments which obviously are more lucrative.
ǡϐ
pool of consultants, skills and expertize, and hence become a Mega Firm.
• Revenue sharing: By appropriate revenue sharing model a PCS who himself may not have subject expertize
can get a share from the assignments of that subject being executed by others.
• Structure & Processes: The structure for execution of works or assignments will be more systematic and the
process will be cost effective due to the standard processes and procedure. The hiring and training of people
will be more systematic there by productivity of the company will be improved.
• Corporate or Industry perceptionǣ ϐǡ
be preferring to one of the familiar, renowned MDF having brand image. The MDF may appear like a known
quantity and can draw from a large pool of partners and associates.
• Reputation & risk-adjusted value: Many of the bigger client’s organizations may prefer that “you never go
wrong when hiring one of the MDF”, since the renowned brands of the MDF are perceived as proxy for high
ǡǤϐ
term.
RISKS
Lack of understanding and multiplicity of directions to the staff could be disastrous.
1. More cost on infrastructure and technology.
2. Dominance of senior partners over the younger partners.
͵Ǥ ϐϐ Ǥ
4. Lack of transparency may lead to disputes.
ͷǤ Ƭǡϐ Ǥ
6. Communication gap between partners.
PROCESS OF CONSTITUTION
The process of formation of MDF shall be an outcome of conscious and sincere decision and it is essential that the
like minded professional should deliberate and take this decision. It shall be ensured that the proposed constituents
have expertize in different disciplines. There could be series of meetings before MOU is reached. It is advisable to
work under MOU for one year. This works as a cooling period and for better understanding each other such trial
period help in getting acclimatised. Mutual faith and understanding is sine qua non. Time has to be given to
understand the compatibility of the individuals to each other. Once the initial bridge is successfully crossed then
Lesson 23 • Mega Firms 961
formal partnership may be constituted on the agreed terms. It will be in the long term interest of the MDF to have
all the founder partners on equal footing. Their intellectual level shall be at par. During the reasonable period
individual practice existing if any, shall be introduced in the firm. When it is proposed to add new partner, apart
from settling commercial terms, it is suggested that the MDF shall enter into MOU effective at least for one year
with the proposed partner and after understanding each others compatibility he or she may be admitted to the
MDF.
Management of Firms
The ϐ ϐ ǡ
ϐ Ǥ Ǥ
(a) Operational functions
ϐǡ
the domain areas by each of the partners.
(b) Administrative functions
ϐǤ
Ǧ ϐ ǡ ǡ
ǡ Ǧǡ ǡ ǡ ǡ ǡ ϐ ǡ ǡ
software, its maintenance, brand building, etc.
(c) Human resources
ϐ Ǥ
ϐǡ Ǥ ǡ
promotions, incentives, salaries, HR management, require proper knowledge of human resources skills.
(d) Client relationship
Ǥ ǡ ϐ ǡ ϐ Ǧ ǡ
Ǧ ǣ Dz ϐ
ǡϐǡ ǡ ǡ
ǡϐ ǯϐǤ
prosper.”
(e) Public Relationship and Brand building
ǡϐ Ǥ
and quality service to the client who certainly recommend the name of a good consultants to their peers.
There cannot be a marketing department in MDF but there has to be PR department which ensures cordial
relations with the existing and probable clients.
Revenue Sharing Models
In the long term success of the MDF the revenue sharing model has to be designed to suit the given situation.
ϐǤ
that each one is bringing equal business and generating equal revenue. However, in reality if it doesn’t happen it
may give rise to sense of discomfort against the person who is continuously showing less contribution but at the
ϐǤ
ǡ Dz ǡ ϐ dzǤ
a situation where A,B,C,D and E are the partners expert in different disciplines. The revenue sharing model could be
the following:
1. Partner bringing new client shall be given referral or induction share, say, @ 15% of the fees settled and
Ǣ ϐǢ
962 Lesson 23 • EP-CL
Conclusion
One stop or single window solutions or services always attract clients or customers. We can witness that conventional
shops are being replaced by big shopping malls. In the same manner there is need for corporate and business sector
to have “service malls”. It always works better for a business enterprise to have handy team of consultants, both
from cost and management point of view. It is most likely that MDF giving professional advice considers all angles
and dimensions rather than an advice only from one point of view. Well considered advice by MDF can add value to
their clients. Off late, business enterprises have become professionally shroud and they always like to have a
ϐǤ
platform that caters to the requirement of the business enterprises. With specialized partner, “knowledge
management” becomes easier and less costlier.
ϐǤ ͳͲͳͲϐ ϐ Ǥ
Ǥϐ
become larger and one day the global business enterprise will call them a “Mega Firm”.
ANNEXURE I
Frequently Asked Questions
ͳǤ ϐǡǡǡ ǫ
CA/CWA may become partners of PCS only for non attestation services i.e. only for the purposes as
Ǥʹǡ͵ǡͶƬͷ Ȁ ϐ
as contemplated by Clause 1 of Part I of the First Schedule. That is to say a PCS even if he is allowed to be a
partner of a Chartered Accountant, will not be able to sign the Auditors report on behalf of the multidisciplinary
ϐǤȋͳͺƬ ǡͳͻͺʹǡ Ȍ
2. How many Partners a PCS Partnership Firm can have ?
According to section 464(1) of the Companies Act, 2013, r/w Rule 10 of the Companies (Miscellaneous)
Rules, 2014, provides that no association or partnership shall be formed, consisting of more than 50
persons for the purpose of carrying on any business that has for its objects the acquisition of gain by the
association or partnership or by individual members thereof, unless it is registered as a company under
the Act or is formed under any other law for the time being in force.
The number of persons which may be prescribed under this sub-section shall not exceed 100.
However, nothing in Section 464(1) shall apply to:
ȋȌ Ǣ
(b) an association or partnership, if it is formed by professionals who are governed by special Acts.
Lesson 23 • Mega Firms 963
Every member of an association or partnership carrying on business in contravention of Section 464 (1) shall
ϐ
liabilities incurred in such business.
3. Can there be a PCS LLP in between CA, CS, CWA, Advocate?
Yes, there can be a PCS LLP in between CA, CS, CWA, Advocate. (See Regulation 168 A & B of Company
Secretaries Regulations, 1982, discussed in earlier chapter)
4. How many Partners LLP of Practicing professional can have ?
The minimum number of members of LLP under LLP Act, 2008 is two, there is no restriction on a maximum
number of members.
5. Are there any restrictions on sharing fees with members/ non-members of ICSI ?
A Company Secretary in P ϐ
ϐ
ϐ Ǥ ϐ
arrangement with a member of the Institute and/or with a member of such other professional body or other
ϐ Ǥȋ ͵ ǡ
1982).
Ǥ ϐ Ȁ ǫ
Fees shall be charged for the professional work done.
7. Can a Mega Firm have branches within / outside India? What regulations guide operations of such
ϐ ǫ
͵ȋͳȌ ǡͳͻͺͲ ϐ
ϐ ǡ ϐ
charge of a member of the Institute.
ϐ
few or no Company Secretaries in Practice are decided by the Council on the merits of each case subject to the
following general conditions:
ϐ ϐ ϐ Ǥ
ϐ ϐ ͳͲͲϐ Ǥ ǡ
candidate who has passed Intermediate examination of the Institute and also completed Management/
Apprenticeship Training or has passed the Final Examination of the Institute is posted at the said branch
ϐ ǡϐ ϐ Ͳϐ Ǥ
The approval shall be valid for a period of two years within which a member must be appointed in the
ϐ Ǥ
͵ȋʹȌ ϐ
ϐ ϐ
intimate any change therein. Regulation 163 of the Company Secretaries Regulations, 1982, requires the
changes to be intimated to the Council within one month of such change(s).
964 Lesson 23 • EP-CL
LESSON ROUND-UP
Ȉ ǡǡϐǡ
of sustained earnings in long run, no fear of loosing employment at advanced age.
• The process of formation of MDF shall be an outcome of conscious and sincere decision and it is essential
that the like minded professional should deliberate and take this decision.
Ȉ ϐ ǡ
allocation of duties, responsibilities, delegation of authorities, revenue sharing and exit route.
Ȉ ϐ ϐ ǡ
ϐ Ǥ
Ȉ ϐǤ
GLOSSARY
TEST YOURSELF
(These are meant for recapitulation only. Answers to these questions are not to be submitted for evaluation.)
ͳǤ ϐ ϐ ϐ
EXECUTIVE PROGRAMME
COMPANY LAW
MODULE 1 PAPER 2 EP-CL
WARNING
It is brought to the notice of all students that use of any malpractice in Examination is misconduct as provided
in the explanation to Regulation 27 and accordingly the registration of such students is liable to be cancelled or
terminated. The text of regulation 27 is reproduced below for information:
“27. Suspension and cancellation of examination results or registration.
In the event of any misconduct by a registered student or a candidate enrolled for any examination conducted
by the Institute, the Council or any Committee formed by the Council in this regard, may suo motu or on receipt
ǡϐǡ
and after giving such student or candidate an opportunity of being heard, suspend or debar him from appearing
in any one or more examinations, cancel his examination result, or registration as student, or debar him from
Ǧǡ ϐǤ
966 EP-CL
EXECUTIVE PROGRAMME
COMPANY LAW
[This Test Paper is for recapitulate and practice for the students. Students need not to submit responses/ answers to
this test paper to the Institute.]
TEST PAPER
Time Allowed: 3 Hours Maximum Marks: 100
Total number of questions: 6
(All references to the sections relate to Companies Act 2013, unless stated otherwise)
1. (i) Zesus Ltd. is a company incorporated under the Companies Act, 2013. The paid-up share capital of the
company is held as under :
(4 marks)
(ii) A group of persons, called promoters have submitted an application to the Registrar of Companies, New
Delhi for getting a company incorporated as a Private Company. Pending the Registrar’s decision of
ϐ ǡ
assets for the proposed company. Explain the legal position of promoters’ liability for re-payment of loan
and the liability of the proposed company after its incorporation, in this regard ?
(4 marks)
(iii) Explain the term ‘preferential offer’. Whether a company issuing securities on preferential basis is also
required to comply with the conditions concerning private placement ?
(4 marks)
(iv) What are the different modes of implementation of CSR activities? Which entities are eligible to act as an
implementing agency for undertaking CSR activities?
(4 marks)
2. (i) Lion Industries Private Limited Company has its paid-up share capital of Rs. 1 crore and turnover of Rs.
10 crore as per the last audited Balance Sheet. Examining the provisions of the Companies Act, 2013,
decide whether the company will be treated as small company. What would be your answer in case the
company is governed by any Special Act ?
(5 marks)
(ii) Mr. ‘A’ a press reporter by profession, holding merely 1% shares of the company, wishes to inspect the
Register of members of the company. Company has declined such demand taking the base that he may
use the information for creating some news. Is the contention of the company valid?
(5 marks)
(iii) Phoneix Pvt. Ltd. wishes to appoint Manager Finance, as an internal auditor also. Referring to the relevant
provisions of the Companies Act, 2013 advise the company, whether it can do so or not?
(5 marks)
3. (i) Is Company have the power to remove a Statutory Auditor after his appointment as per the Companies
Act, 2013. If so what is the procedure of his Removal?
(5 marks)
(5 marks)
(5 marks)
4. (i) "Listed companies are required to comply with the SEBI (Listing Obligations and Disclosure
Requirements) Regulations, 2015 and should provide a separate section on 'corporate governance' in
the annual report of the company. " Discuss this statement and suggest list of items related to disclosure
pertaining to the Board of Directors to be included in such report ?
(5 marks)
(iii) Discuss the role of Audit Committee in Related Party Transactions? (5 marks)
(iv) Who can present petition to the Tribunal for the winding up of a company? (5 marks)
968 EP-CL
(ii) Draft an appropriate resolution to appoint a Managing Director under the Companies Act, 2013.
(5 Marks)
(iv) The Board of Directors of Mackenzy limited had 10 directors. One of them died and the board appointed
ϐȂ Ǥ ǡ
procedure of such appointment would you advice to the board and why?
(5 Marks)
(b) What are the grounds for removal of name of Members from Register of Members? (3 marks)
(c) Is Secretarial standards mandatorily applicable on every company? If not, which companies are exempted
from it? (3 marks )
BIBLIOGRAPHY
Website
2. https://aishmghrana.me/
4. http://www.mca.gov.in/
5. https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/acts.html?act=NTk2MQ==
6. https://www.sebi.gov.in/
7. http://www.legalserviceindia.com
ͺǤ ǣȀȀǤǤǤȀȀʹͲͲȀͶȀȀ̴ʹͲͲͲͲͶ̴Ǥ
10. https://www.legislation.gov.au/Details/C2013C00003
11. http://laws.justice.gc.ca/eng/acts/C-1.8/
ͳʹǤ ǣȀȀǤǦǤȀȀȀ̴̴Ǥ̴Ǥ