Taxmann's Company Law

ABOUT THE AUTHORS

Dr. G. K. Kapoor, Ph.D. (DU) was an Adjunct Professor, ‘Business and Corporate Laws’ at International Management Institute (IMI), New Delhi. Earlier, he was Associate Professor and Officiating Principal, Shaheed Bhagat Singh College, University of Delhi. For a period of two years (1987–1989), he was Deputy Director (Studies) and also Secretary to the Company Law Committee with the Institute of Chartered Accountants of India, New Delhi. A co-winner of NIRC, ICAI Best Teacher Award 2000, Dr. Kapoor is an author of various books on ‘Business and Corporate Laws’ and ‘Management’ including Company Law and Practice; Business Law including Company Law; Business Law, Ethics and Communication; Corporate and Allied Laws; Economic and Labour Laws; Business Policy and Environment. He has more than 50 years of teaching experience of ‘Business and Corporate Laws’ and ‘Management’ at undergraduate, postgraduate and professional levels. He has been on the Guest Faculty of the Institute of Chartered Accountants of India, Indian Law Institute, All India Management Association, Indian Institute of Bankers, Indian Institute of Public Administration, International Management Institute (IMI), and Institute for Integrated Learning and Management (IILM). He was conferred an ‘Excellence Award for his contribution to Education’ by Amity University, Noida in February 2012.

Dr. Sanjay Dhamija, currently is Professor at the International Management Institute, New Delhi. He is a doctorate in finance and a Fellow Member of the Institute of Company Secretaries of India (FCS) and of the Institute of Cost Accountants of India (FCMA). He did his M. Com. from Delhi School of Economics and LL. B from Delhi University. He is also a Chartered Financial Analyst from ICFAI. Prof. Dhamija has attended workshops at Harvard Business School, Wharton Business School and Robert H. Smith School of Business.

Professor Dhamija has over 37 years of rich experience both in industry and academia. He worked in industry in senior positions for over 16 years and since 2003 he is in academics having worked with ICFAI Business School and Management Development Institute (MDI) before joining IMI in 2009. He was I-5

ABOUT THE AUTHORS

I-6

awarded for ‘Excellence in Teaching’ at MDI and as ‘Best Trainer’ at IMI. He was recognized as the ‘Best Teacher in Financial Management’ at 17th Dewang Mehta Business School Awards. He also received the award for the ‘Best Case in finance, economics, business and political environment’ at the 40th Anniversary Case Conference of the Case Center, UK held at IIM-Bangalore.

He has handled a number of consulting and training assignments for organizations in government sector, public sector and private sector. He also regularly conducts popular programs on ‘Finance for Non-Finance Executives’ and ‘Understanding and Analysis of Financial Statements’. He has authored books in the areas of company law, business law, financial management, financial derivatives, financial accounting & analysis, financial reporting and corporate governance. He has published research papers and case studies in national and international journals.

PREFACE TO THE TWENTY-SIXTH EDITION

It gives us immense pleasure in presenting the Twenty-Sixth Edition of the Book.We express our gratitude to the readers for the encouraging response to our writing. In this edition, we have not only incorporated changes, at appropriate places, brought in through changes in rules through Notifications of the Ministry of Corporate Affairs but also updated the discussion wherever needed.

Since the last edition of the book, the MCA has taken various initiatives towards ease of doing business in India. Various steps have been taken to simplify the processes by making suitable amendments in the Rules. The definition of a small company has been changed, bringing many more companies within the definition of a small company, and thereby extending the relevant relaxations to these companies. To centralize the process of striking off the name of companies from the register, the Central Government has established the Centre for Processing Accelerated Corporate Exit (C-PACE). The MCA has also rolled out a new version of MCA-21 (V3) during the year. All these have been suitably covered in the current edition.

Changes in the Companies Act and the notified new/amended rules up to 30th November, 2023 have been duly incorporated at appropriate places in the text. Relevant case laws reported up to 30th November, 2023 have been discussed at the relevant places in the book. In addition, we have taken care to add as well as change discussion in certain areas based on feedback received from the readers and colleagues in various colleges.

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PREFACE TO THE TWENTY-SIXTH EDITION

I-8

We are sure that the readers will appreciate this edition like the earlier ones and continue to give us an opportunity to serve them. We request you to continue to send your feedback/suggestions. These certainly help improve the text.

With Best Wishes, DR. G. K. KAPOOR DR. SANJAY DHAMIJA

PREFACE TO THE FIRST EDITION

Legal framework is an important constituent of the Business and Corporate Environment. No corporate entity can effectively work and survive without meeting its legal obligations. The law relating to companies is perhaps the most significant and all pervasive amongst the various corporate legislations. It requires compliances on the part of the companies, their directors and other officers of numerous requirements of the Act. Non-compliance of various provisions of the law relating to companies may result in penal consequences and ill reputation. The Companies Act, 1956, the law in our country in this regard, is a complicated piece of legislation. Numerous amendments made in this legislation over the years from its inception have brought in more and more complexities. The amendments were intended to deal with increased complexities in the business and corporate environment. Further, a number of judicial decisions on the subject have added new dimensions to the interpretations of the provisions of this legislation. The Department of Company Affairs, Government of India, has also, over the years, issued a large number of clarifications. Besides, the Securities & Exchange Board of India (SEBI) has issued a number of guidelines and clarifications to regulate the capital market in India.

The present book represents an impressive and judicious blending of the provisions of the Companies Act, 1956, judicial decisions, the clarifications issued by the Department of Company Affairs and the guidelines and clarifications issued by the SEBI. The text is interspersed with interpretations, explanations and illustrations, wherever felt necessary, to help the readers to assimilate the provisions in a better way.

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PREFACE TO THE FIRST EDITION

The authors have tried to present the provisions of the law in a simple and lucid style, backed by most up-to-date case decisions.

Besides, a number of specimen notices, minutes and resolutions have been given at relevant places to help students to answer questions specifically based thereon.

SEBI guidelines for disclosure and investors’ protection originally issued in 1992 have undergone many significant changes. As many as XVI clarifications have been issued. The present book has taken due notice of those guidelines and all the XVI clarifications have been referred to at appropriate places.

Another feature of the book that readers may appreciate is the Summary at the end of each Chapter containing substantive provisions of law covered in that Chapter.

Still another feature that may interest the readers is Hints to questions and practical problems which have been selected from past examination papers of various universities and professional institutes.

The work of this kind would not have been possible without reference to the authentic commentaries and other publications on the subject - Indian and foreign. We shall, therefore, like to record our gratitude to the authors and the publishers of those publications. An attempt has been made to acknowledge the contributions wherever material has been quoted.

Although every effort has been made to offer the most authentic position on the subject, claiming cent per cent accuracy will be too tall a claim. Moreover, there may be differences in interpretation. We shall, therefore, be too happy to receive suggestions and comments from our readers which we promise to acknowledge with gratitude.

Special thanks are due to Shri Vinay Kumar Jain, FCA and a friend, who, as ever, continued to offer his moral support.

We must also express our thanks to M/s. Taxmann for their cooperation in many ways. Without their help this work would have just not been possible.

Last but not the least, our wives and children do need a mention for their sacrifice and co-operation in providing us with the necessary environment and the sumptuous lunches and teas during our long sittings over weekends. Without their support, we could not have met the target date.

Independence Day 1996.

A.K. MAJUMDAR DR. G.K. KAPOOR

CHAPTER-HEADS

PAGE

About the Authors

I-5

Preface to the Twenty-sixth Edition

I-7

Preface to the First Edition

I-9

Contents

I-13

Section-wise Index

I-29

CHAPTER 1

:

HISTORY OF COMPANY LEGISLATION

1

CHAPTER 2

:

MEANING AND NATURE OF A COMPANY

11

CHAPTER 3

:

KINDS OF COMPANIES

38

CHAPTER 4

:

FORMATION AND INCORPORATION OF A COMPANY

84

CHAPTER 5

:

MEMORANDUM OF ASSOCIATION

106

CHAPTER 6

:

ARTICLES OF ASSOCIATION

134

CHAPTER 7

:

PROSPECTUS

155

CHAPTER 8

:

ACCEPTANCE OF PUBLIC DEPOSITS

174

CHAPTER 9

:

SHARE AND SHARE CAPITAL

185

CHAPTER 10

:

MEMBERSHIP

282

CHAPTER 11

:

REGISTERS AND RETURNS

295

CHAPTER 12

:

INVESTMENTS, LOANS, BORROWINGS AND DEBENTURES

312

CHAPTER 13

:

DIVISIBLE PROFITS AND DIVIDEND

339

CHAPTER 14

:

COMPANY MANAGEMENT

355

CHAPTER 15

:

COMPANY SECRETARY AND PRACTISING COMPANY SECRETARY

430

COMPANY MEETINGS-I - GENERAL

438

CHAPTER 16

:

I-11

CHAPTER-HEADS

I-12 PAGE

CHAPTER 17

:

COMPANY MEETINGS-II - GENERAL BODY MEETINGS

468

CHAPTER 18

:

COMPANY MEETINGS-III - BOARD MEETINGS

481

CHAPTER 19

:

ACCOUNTS AND AUDIT

493

CHAPTER 20

:

INSPECTION, INQUIRY AND INVESTIGATION

532

CHAPTER 21

:

MAJORITY RULE AND MINORITY PROTECTION

546

CHAPTER 22

:

PREVENTION OF OPPRESSION AND MISMANAGEMENT

554

CHAPTER 23

:

COMPROMISES, ARRANGEMENTS, RECONSTRUCTION AND AMALGAMATION

579

CHAPTER 24

:

WINDING UP

609

CHAPTER 25

:

AUTHORITIES UNDER THE COMPANIES ACT, 2013

670

CHAPTER 26

:

SERVICE OF DOCUMENTS

683

CHAPTER 27

:

CORPORATE GOVERNANCE

685

CHAPTER 28

:

DEPOSITORIES ACT, 1996 : AN ANALYSIS

695

CHAPTER 29

:

COMPANY LAW IN A COMPUTERISED ENVIRONMENT - E-GOVERNANCE AND E-FILING

705

CONTENTS

PAGE

About the Authors

I-5

Preface to the Twenty-sixth Edition

I-7

Preface to the First Edition

I-9

Chapter-heads

I-11

Section-wise Index

I-29

1 HISTORY OF COMPANY LEGISLATION 1.1

History of company legislation in India

1

2 MEANING AND NATURE OF A COMPANY 2.1

What is a company ?

11

2.2

Definition of a company

12

2.3

Characteristic features of a company

12

2.4

Lifting the corporate veil

17

2.5

Advantages of Incorporation

26

2.6

Disadvantages of Incorporation

28

2.7

Company vis-a-vis Body corporate

29

2.8

Is company a citizen ?

30

2.9

Illegal association [Section 464]

32

2.10

Distinction between a company and a partnership

33

2.11

Difference between a company and limited liability partnership

35

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CONTENTS

I-14 PAGE

2.12

Can a company become partner in a partnership firm ?

36 36

TEST YOUR KNOWLEDGE

3 KINDS OF COMPANIES 3.0

Introduction

38

3.1

Private company

38

3.1A

One Person Company

40

3.1B

Small Company

44

3.2

Public company

45

3.3

Distinction between private and public company

45

3.4

Special privileges and exemptions available to private companies

46

3.5

Conversion of a private company into a public company

49

3.6

Conversion of a public company into a private company

50

3.7

Statutory company

54

3.8

Registered companies

54

3.9

Limited liability companies

54

3.10

Unlimited liability company

56

3.11

Association not for profit

58

3.12

Memorandum and Articles of Association

59

3.13

Government companies

60

3.14

Foreign company

62

3.14A

Offer of Indian Depository Receipts [Section 390]

66

3.15

Holding and subsidiary companies

67

3.16

Associate Company [Section 2(6)]

68

3.17

Public financial institutions [Section 2(72)]

68

3.18

Unregistered Companies [Section 375]

69

3.19

Dormant Company [Section 455]

70

3.20

Inactive Company [Section 455]

70

3.21

Producer Companies [Sections 378A to 378ZU of the Companies Act, 2013]

70

TEST YOUR KNOWLEDGE

81

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CONTENTS PAGE

4 FORMATION AND INCORPORATION OF A COMPANY 4.1

Promotion

84

4.2

Registration/Incorporation of a company

91

4.3

Simplified Proforma for Incorporating Company Electronically (SPICe) + (Pronounced as SPICe Plus)

95

Certificate of incorporation

99

4.3AA Online Registration of a company

99

4.3A 4.3B

Effect of certificate of incorporation

102

4.3C

Conclusiveness of certificate of incorporation

102

4.4

Commencement of business

103 104

TEST YOUR KNOWLEDGE

5 MEMORANDUM OF ASSOCIATION 5.1

Meaning and importance

106

5.2

Memorandum of Association - Whether an unalterable charter

106

5.3

Form and contents

107

5.4

Alteration of memorandum

121 131

TEST YOUR KNOWLEDGE

6 ARTICLES OF ASSOCIATION 6.1

Introduction

134

6.2

Memorandum and Articles - Their Relationship

134

6.3

Distinction between memorandum of association and articles of association

136

6.4

Contents

136

6.5

Model form of articles

138

6.6

Signing of Articles

138

6.7

Alteration of articles

139

6.8

Binding effect of memorandum and articles

143

6.9

Doctrine of constructive notice

147

CONTENTS

I-16 PAGE

6.10

Doctrine of indoor management

148 151

TEST YOUR KNOWLEDGE

7 PROSPECTUS 7.1

Meaning and definition of a prospectus

155

7.2

Contents of a prospectus

157

7.3

Draft Prospectus to be made public

160

7.3A

Abridged Prospectus

160

7.4

Is issue of prospectus compulsory/When prospectus is not required to be issued?

161

7.5

Statutory requirements in relation to a prospectus

161

7.6

Prospectus by implication/Deemed prospectus [Section 25]

163

7.7

Shelf Prospectus and Information Memorandum [Section 31]

164

7.8

Red herring prospectus [Section 32]

165

7.9

Misstatements in a prospectus and their consequences

165

7.10

Golden Rule for framing of Prospectus

169

7.11

Allotment of shares in fictitious names prohibited [Section 38]

170

7.12

Announcement regarding proposed issue of capital [Section 30]

171 171

TEST YOUR KNOWLEDGE

8 ACCEPTANCE OF PUBLIC DEPOSITS 8.1

Meaning of deposits

8.2

Acceptance of deposits

174 177 184

TEST YOUR KNOWLEDGE

9 SHARE AND SHARE CAPITAL 9.1

Meaning and nature of a share

185

9.2

Share v. Share certificate

187

9.3

Share v. Stock

187

9.4

Kinds of Shares

188

9.5

Par Value of Shares

193

9.6

Raising of capital/Issue of shares

193

9.7

Public issue of shares

197

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CONTENTS PAGE

9.8

Employees’ Benefits Schemes

217

9.8A

Employees Stock Option Scheme (ESOS)

218

9.8B

Employee Stock Purchase Scheme (ESPS)

220

9.8C

Stock Appreciation Rights Scheme (SARS)

220

9.9

Allotment of shares

220

9.10

Purchase of its own shares by a company/Buy-back of shares by a company

230

9.11

Financial Assistance for Purchase of its Own Shares

233

9.12

Issue of securities at a premium

235

9.13

Issue of shares at a discount [Section 53]

236

9.14

Issue of sweat equity shares [Section 54]

237

9.15

Share certificate

238

9.16

Rights shares/Further issue of capital [Section 62]

241

9.17

Conversion of loans or debentures into shares

243

9.18

Bonus shares [Section 63]

244

9.19

Distinction between bonus shares and rights shares

246

9.20

Reduction of share capital

246

9.21

Calls on shares

250

9.22

Forfeiture of shares

252

9.23

Surrender of shares

256

9.24

Transfer of shares

257

9.25

Forged transfer

267

9.26

Priority between transferees

268

9.27

Transmission of shares and debentures

268

9.28

Rectification of register of Members [Section 59]

269

9.29

Distinction between transfer and transmission

272

9.30

Nomination of shares and debentures [Section 72]

273

9.31

Lien on shares

273

9.32

Lien and forfeiture compared

274

9.33

Variation of shareholders’ rights

274 275

TEST YOUR KNOWLEDGE

10 MEMBERSHIP 10.1

Definition of a member

282

CONTENTS

I-18 PAGE

10.2

Member v. Shareholder

283

10.3

Modes of acquiring membership

284

10.4

Who may become a member?

285

10.5

Termination of membership

289

10.6

Impersonation as a shareholder

289

10.7

Rights of a member/shareholder

290

10.8

Duties and Liability of members

291

10.9

Member v. Contributory

292

10.10

Expulsion of a member

293 294

TEST YOUR KNOWLEDGE

11 REGISTERS AND RETURNS 11.1

Introduction

295

11.2

Statutory books to be kept by a company

295

11.3

Optional books

295

11.4

Register of Charges [Section 85]

296

11.5

Register of Members/Debenture-holders

297

11.6

Register of investments not held in company’s name [Section 187]

299

11.7

Register of fixed deposits [Section 73]

299

11.8

Books of account

299

11.9

Register of contracts or arrangements in which directors are interested [Section 189]

300

11.10

Register of Directors

302

11.11

Register of Loans and Investments by company [Section 186]

303

11.12

Minutes book

304

11.13

Annual return [Section 92]

306

11.14

Return of allotment [Section 39]

308

11.14A Return of Changes in Shareholding position of Promoters and Top Ten Shareholders

309

Place of keeping and inspection of registers, returns, etc.

[Section 94]

309

11.15

TEST YOUR KNOWLEDGE

311

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CONTENTS PAGE

12 INVESTMENTS, LOANS, BORROWINGS AND DEBENTURES 12.1

Investments

312

12.2

Investments in other companies and bodies corporate/Intercorporate loans and investments [Section 186]

314

12.3

Borrowings

317

12.4

Debentures

325

TEST YOUR KNOWLEDGE

338

13 DIVISIBLE PROFITS AND DIVIDEND 339

13.1/2 Meaning of Dividend 13.3

Concept of Profit

339

13.4

Sources out of which dividends may be paid

340

13.5

Declaration of dividend on preference and equity shares

342

13.6

Interim dividend

344

13.7

Payment of dividend

345

13.8

Dividend warrants

347

13.9

Unpaid and unclaimed dividends

348

13.10

Establishment of Investor Education and Protection Fund [Section 125]

349

13.11

Can dividends be paid out of capital ?

352

13.12

Payment of dividend out of capital profits

352 353

TEST YOUR KNOWLEDGE

14 COMPANY MANAGEMENT 14.1

Meaning of a Director

355

14.2

Who may be appointed as a Director?

355

14.3

Qualifications for Directors

356

14.4

Disqualifications of a Director

356

14.5

Legal position of Directors

358

14.6

Appointment of Directors

360

14.7

Resident Director

367

CONTENTS

I-20 PAGE

14.8

Independent Director

367

14.9

Appointment of directors by proportional representation [Section 163]

376

14.10

Assignment of office by Director [Section 166(6)]

377

14.11

Minimum and maximum number of directors

377

14.12

Appointment of woman director on the Board

378

14.13

Appointment of director elected by small shareholders [Section 151]

378

14.14

Number of directorships

380

14.15

Vacation of office of a director [Section 167]

380

14.16

Removal of a director

382

14.17

Resignation by a Director [Section 168]

385

14.18

Validity of the acts of a director where his appointment is invalid [Section 176]

387

Powers of the Board of Directors

387

14.19

392

14.19A Committees of the board 14.20

Political contributions by Directors [Section 182]

395

14.21

Related party transactions [Section 188]

396

14.22

Interested Director

400

14.23

Duties of Directors

401

14.24

Liabilities of Directors

405

14.25

Loans to Directors

408

14.26

Remuneration of Directors (Managerial Remuneration)

410

14.27

Managing Director and other Key Managerial Personnel

417

14.28

Manager

422

14.29

Prohibition of simultaneous appointment of different categories of managerial personnel [Section 196]

423

14.30

Distinction between managing director and manager

423

14.31

Whole-time director

423 424

TEST YOUR KNOWLEDGE

15 COMPANY SECRETARY AND PRACTISING COMPANY SECRETARY 15.1

Definition of company secretary/secretary

430

15.2

Appointment of whole-time company secretary

430

15.3

Duties of secretary

431

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CONTENTS PAGE

15.4

Liabilities of company secretary

432

15.5

Company secretary in practice

436

15.6

Functions of company secretary [Section 205]

436

15.7

Secretarial audit [Section 204]

436 437

TEST YOUR KNOWLEDGE

16 COMPANY MEETINGS-I - GENERAL 16.1

Meaning of ‘Meeting’

438

16.2

Kinds of Meetings

438

16.3

Requisites of a valid meeting

438

16.4

Meeting to be properly convened

439

16.5

Meeting to be legally constituted

446

16.6

Meeting to be properly conducted

450

16.7

Resolutions

459

16.7A

Validity of votes

461

16.8

Circulation of members’ resolutions [Section 111]

461

16.9

Registration of certain resolutions and agreements [Section 117]

462

Minutes

463

TEST YOUR KNOWLEDGE

464

16.10

17 COMPANY MEETINGS-II GENERAL BODY MEETINGS 17.1

Need for meetings

468

17.2

Annual General Meeting (AGM)

468

17.3

Default in holding AGM

472

17.4

Extraordinary General Meeting (EGM)

473

17.5

Class meetings

477 477

TEST YOUR KNOWLEDGE

18 COMPANY MEETINGS-III - BOARD MEETINGS 18.1

Need for Board Meetings

481

18.2

When to hold ?

481

CONTENTS

I-22 PAGE

Participation of directors through video conferencing or other audio visual means [Section 173(2)]

482

18.4

Board meeting

485

18.5

Contents and Agenda of Board Meeting

487

18.6

Time and place of Board meeting

488

18.7

Quorum

488

18.8

Adjournment for want of quorum

489

18.9

Passing of Resolutions by Circulation [Section 175]

490

18.10

Minutes of the Board meeting

490

18.3

491

TEST YOUR KNOWLEDGE

19 ACCOUNTS AND AUDIT ACCOUNTS

19.1

Books of account required to be kept

493

19.2

Inspection of books of account

495

19.3

Persons responsible for keeping proper books of account [vide sub-section (6) of section 128]

496

19.4

Financial Statements

496

19.5

Authentication of Accounts

499

19.6

Board’s Report

500

19.7

Circulation of Financial Statements

504

19.8

Adoption and filing of Financial Statements

505

19.9

Accounting Standards

508

19.10

Internal Audit

509 AUDIT

19.11

Who can be appointed as an Auditor (Qualifications)?

510

19.12

Who cannot be appointed as an Auditor (Disqualifications)?

511

19.13

Auditor not to render certain services

513

19.14

Appointment of First Auditors

513

19.15

Appointment of subsequent Auditors

514

19.16

Tenure of appointment

514

19.17

Compulsory rotation of auditors

514

19.18

Reappointment of retiring auditor

516

I-23

CONTENTS PAGE

19.19

Rights of retiring auditor [Section 140(4)]

516

19.20

Casual vacancy

516

19.21

Removal and resignation of an auditor

517

19.22

Remuneration of auditors

518

19.23

Rights of the company auditor

519

19.24

Duties of Company Auditor

521

19.25

Special provisions relating to audit of Government Companies

523

19.26

Punishment for Contravention

525

19.27

Audit Committee

525

19.28

Cost audit [Section 148]

526

19.29

Secretarial Audit

528 529

TEST YOUR KNOWLEDGE

20 INSPECTION, INQUIRY AND INVESTIGATION INSPECTION

20.1

Power to call for information, inspect books and conduct inquiries

532

20.2

What books and papers can be inspected?

534

20.3

Place and time of inspection

534

20.4

Duties of directors, officers, employees of the company to assist in inspection

534

20.5

Powers of the inspector

535

20.6

Supply of report

536

20.7

Investigation

536

20.8

Who can apply and the scope of investigation?

536

20.9

Investigation into affairs of a company by Serious Fraud Investigation Office

537

20.10

Investigation into company’s affairs in other cases

539

20.11

Firm, body corporate or association not to be appointed as inspector

540

20.12

Investigation of ownership of a company [Section 216]

540

20.13

Powers of inspectors

541

20.14

Report of the Inspector

543

INVESTIGATION

CONTENTS

I-24 PAGE

Follow up action by the Central Government on the investigation report of the inspector

543

20.16

Investigations etc. of foreign companies [Section 228]

544

20.17

Penalty for furnishing false statements, mutilation or destruction of documents

544

Difference between Inspection and Investigation

544

20.15

20.18

545

TEST YOUR KNOWLEDGE

21 MAJORITY RULE AND MINORITY PROTECTION 21.1

Rule of majority

546

21.2

Personal rights of members

548

21.3

Representative and Derivative Action

549

21.4

Exceptions to ‘the rule in Foss v. Harbottle’

550 553

TEST YOUR KNOWLEDGE

22 PREVENTION OF OPPRESSION AND MISMANAGEMENT 22.1

Meaning of oppression

554

22.2

Application to Tribunal for relief in cases of oppression etc.

564

22.3

Power of Tribunal

568

22.4

Oppression of majority

569

22.5

Appeals against the orders of the Tribunal and variation of the order of Tribunal

570

Composite/simultaneous petition under sections 241 and 271 Whether maintainable

571

22.7

Powers of the Tribunal [Section 242]

571

22.8

Class Action

574

TEST YOUR KNOWLEDGE

577

22.6

23 COMPROMISES, ARRANGEMENTS, RECONSTRUCTION AND AMALGAMATION 23.1

Meaning of compromise

579

23.2

Meaning of arrangement

579

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CONTENTS PAGE

23.3

Statutory provisions regarding compromise or arrangement

580

23.4

Exercise of the Tribunal’s discretion

582

23.5

Powers of the Tribunal

586

23.6

Information as to compromise or arrangement [Section 230]

587

23.7

Reconstruction and amalgamation

589

23.8

Meaning of reconstruction

589

23.9

Meaning of amalgamation and merger

590

23.10

Difference between amalgamation and reconstruction

590

23.11

Take-over v. Merger

590

23.12

Legal provisions regarding reconstruction and amalgamation

591

23.13

Reconstruction/Amalgamation by sale of undertaking [Section 232]

591

Merger and Amalgamation of certain companies [Section 233]

597

23.14

23.14A Application of section 233 to Start up Companies

599

23.15

Merger or Amalgamation with foreign company [Section 234]

599

23.16

Power to acquire shares of shareholders dissenting from scheme or contract approved by majority [Section 235]

600

23.17

Amalgamation of companies in public interest [Section 237]

603

23.18

Preservation of Books and Papers of Amalgamated Company [Section 239]

605

23.19

Offences committed prior to merger, amalgamation [Section 240]

606

Valuation by registered valuers

606

23.20

606

TEST YOUR KNOWLEDGE

24 WINDING UP 24.1

Meaning

609

24.2

Modes of winding up [Section 270]

609

24.3

Winding up by the Tribunal

610

24.4

Who can make petition? [Section 272]

617

24.5

Commencement of winding up [Section 357]

620

24.6

Procedure for winding up order

620

24.7

Consequences of winding up order

623

24.8

Submission of report by Company Liquidator [Section 281]

625

24.9

Promoters, directors etc. to cooperate with the Company Liquidator [Section 284]

627

CONTENTS

I-26 PAGE

24.10

Advisory Committee [Section 287]

627

24.11

General Powers of Tribunal in case of winding up by Tribunal

629

24.12

Dissolution of company [Section 302]

629

24.13

Enforcement of and appeal from orders

630

24.14

Summary procedure for Liquidation [Section 361]

631

24.15

Liquidators

632

24.16

Liquidators in winding up by the Tribunal

632

24.17

Liquidator in Summary Procedure

635

24.18

Official Liquidators

635

24.19

Provisions applicable to every mode of winding up

635

24.20

Debts of all descriptions to be admitted to proof [Section 324]

635

24.21

Preferential Payments

636

24.22

Antecedent and other transactions

639

24.23

Avoidance of voluntary transfer [Section 329]

640

24.24

Transfer for benefit of all creditors [Section 330]

640

24.25

Liabilities and rights of certain fraudulently preferred person [Section 331]

641

24.26

Effect of floating charge [Section 332]

641

24.27

Disclaimer of onerous property [Section 333]

641

24.28

Avoidance of transfers, etc. after commencement of winding-up [Section 334]

643

24.29

Avoidance of certain attachments [Section 335]

643

24.30

Offences by officers of companies in liquidation [Section 336]

644

24.31

Penalty for fraud by officers [Section 337]

645

24.32

Liability for not keeping proper books [Section 338]

646

24.33

Liability for fraudulent conduct of business [Section 339]

646

24.34

Damages for misfeasance etc. [Section 340]

647

24.35

Prosecution of Delinquent Officer and Members of the Company [Section 342]

650

24.36

Miscellaneous provisions

650

24.37

Distribution of property

653

24.38

Default by the Company Liquidator to make returns [Section 353]

654

24.39

Meetings to ascertain wishes of creditor and contributories [Section 354]

654

24.40

Contributory

654

24.41

Unregistered Companies

658

24.42

Winding-up of a Foreign Company

660

I-27

CONTENTS PAGE

24.43

Removal of name of company from Register of Companies

660

24.44

Transfer of winding-up proceedings to Tribunal

666 667

TEST YOUR KNOWLEDGE

25 AUTHORITIES UNDER THE COMPANIES ACT, 2013 25.1

Registrar of Companies (R.O.C.)

670

25.2

Regional Director

672

25.3

National Financial Reporting Authority [Section 132]

673

25.4

Serious Fraud Investigation Office [Section 211]

675

25.5

National Company Law Tribunal

676

25.6

National Company Law Appellate Tribunal

678

25.7

Special Courts

681 682

TEST YOUR KNOWLEDGE

26 SERVICE OF DOCUMENTS 26.1

Service of documents on a company

683

26.2

Service of documents on R.O.C. [Section 20]

683

26.3

Service of documents on members by company [Section 20]

683

26.4

Electronic communication

684 684

TEST YOUR KNOWLEDGE

27 CORPORATE GOVERNANCE 27.1

Meaning of Corporate Governance

685

27.2

Need for Corporate Governance

685

27.3

Corporate Governance in India

687

27.4

Kotak Committee on Corporate Governance

691

27.5

Certain Provisions of the Companies Act, 2013 vis-a-vis Corporate Governance

TEST YOUR KNOWLEDGE

692 694

CONTENTS

I-28 PAGE

28 DEPOSITORIES ACT, 1996 : AN ANALYSIS 28.1

Objectives

695

28.2

Salient features of Depositories Act, 1996

695

28.3

Meaning of Depository

696

28.4

Benefits of depository system

696

28.5

Services to be rendered by a Depository

696

28.6

Dematerialisation of securities

699

28.7

How does an investor avail services of a depository?

699

28.8

Free transferability of services

700

28.9

Rematerialisation

701

28.10

Powers of SEBI under the Depositories Act, 1996

701

28.11

Bye-laws of a depository

701

28.12

Stamp duty on security certificates

702

28.13

Distinctive number of shares

703

28.14

Exercise of membership rights in respect of securities held by a Depository

703

28.15

The evidential value of the records of the depository

703

28.16

Cognizance of offence by Courts

703

28.17

Penalty for offences under the Depositories Act

703 704

TEST YOUR KNOWLEDGE

29 COMPANY LAW IN A COMPUTERISED ENVIRONMENT - E-GOVERNANCE AND E-FILING 29.1

What is e-Governance

705

29.2

Filing of applications, documents, inspection etc. in electronic form

705

29.3

Advantages of e-Filing

707

29.4

MCA-21 Programme

707

29.5

MCA-21 Version 3

709

29.6

Five Step e-Filing Process

710

TEST YOUR KNOWLEDGE

713

29

Company Law in a Computerised Environment E-Governance and E-Filing

29.1 What is e-Governance Electronic Governance is the application of information technology to the Government functioning in order to bring about Simple, Moral, Accountable, Responsive and Transparent (SMART) Governance. E-Governance is a highly complex process requiring provision of hardware, software, networking and re-engineering of the procedures for better delivery of services.

Traditionally, the interaction between citizens or business and Government agency takes place in a Government office. In e-Governance, the interaction takes place virtually using Internet based technology, thus reducing time and cost involved.

Even better, E-Governance enhances the citizens and business access to Government information and services and provides new ways to increase citizen participation in the democratic process.

Sections 398 to 402 of the Companies Act, 2013 contain provisions relating to electronic filing of forms, returns and documents with the Registrar and provisions of value added services.

29.2 Filing of applications, documents, inspection etc. in electronic form Section 398 of the Act empowers the Central Government to make rules for filing, maintenance and inspection of various applications, form etc. through the electronic mode. The sub-section (1) states that notwithstanding anything contained in this Act, and without prejudice to the provisions contained in section 6 of the Information Technology Act, 2000, the Central Government may, by notification in the Official Gazette, make rules regarding : 705

Para 29.2

COMPANY LAW IN A COMPUTERISED ENVIRONMENT

706

(a) Filing or delivery of specified applications, balance-sheet, prospectus, return, declaration, memorandum of association, articles of association, particulars of charge, or any other particulars or document to be done through the electronic form and authenticated in manner as may be specified; (b) Service or delivery of specified document, notice, any communication or intimation, required to be done through the electronic form and authenticated in manner as specified; (c) Maintenance of such applications, balance-sheet, prospectus, return, register, memorandum of association, articles of association, particulars of charge, or any other particulars or document and return filed by the Registrar in the electronic form and registered or authenticated in the manner as may be specified; (d) Inspection of the memorandum of association, articles of association, register, index, balance-sheet, return or any other document maintained in the electronic form, may be made by any person through the electronic form as may be specified; (e) Prescribed fees, charges or other sums to be paid through the electronic form and in the manner as may be specified; (f) Registration of change of registered office, alteration of memorandum of association or articles of association, issue certificate of incorporation or certificate of commencement of business, register such document, issue such certificate, record notice, receive such communication by the Registrar or performance of other duties or discharge of functions or exercise of powers by the Registrar, by the electronic form, in the manner as may be specified.* (2) The Central Government may, by notification in the Official Gazette, frame a scheme to carry out the provisions specified under sub-section (1) through the electronic form.

The Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2015 require certain class of companies to file their financial statement and other documents under section 137 of the Act using the XBRL taxonomy.

XBRL refers to Extensible Business Reporting Language which is a standardized language for communication in electronic form to express, report or file financial information by the companies under the Act.

29.2-1 Electronic form to be exclusive, alternative or additional Section 400 clarifies that the electronic form shall be exclusive or in alternative or in addition to the physical form. The Central Government is empowered to make rule in this respect.

29.2-2 Providing of value added services through electronic form [Section 401] The Central Government may provide such value added services through the electronic form and levy such fees as may be prescribed. *Prospectus not required to registered by the Registrar, amended vide Companies (Amendment) Act, 2019.

707

MCA-21 PROGRAMME

Para 29.4

29-2-3 Application of provision of Information Technology Act, 2000 Section 402 states that all the provisions of the Information Technology Act, 2000 relating to the electronic records (including the manner and format in which the electronic records shall be filed), insofar as they are not inconsistent with this Act, shall be applicable to the records in electronic form under section 398.

29.3 Advantages of e-Filing u Business shall be enabled to register a company and file statutory docu-

ments quickly and easily. u Public to get easy access to relevant records and get their grievances

redressed effectively. u Professionals to be able to offer efficient services to their client companies. u Financial institutions to find registration and verification of charges easy. u Government to ensure proactive and effective compliance of relevant laws

and corporate governance. u MCA employees shall be enabled to deliver best of breed services.

29.4 MCA-21 Programme Ministry of Company Affairs (MCA) launched a major E-Governance initiative (MCA-21). It envisaged e-filing of all documents relating to company matters on the MCA portal.

MCA moved from the traditional paper-based operation to a near paperless environment. Consequently, the conventional forms prescribed for various transactions have been adapted for use through electronic medium. The processes and forms of MCA have been simplified and standardized for electronic filing (e-Filing) through e-Forms.

Salient Features of the MCA-21 include : u Corporations, professionals and the public at large will no longer need to visit

the Registrar of Companies offices and would be able to interact with the Ministry using the MCA-21 portal from their offices or home or by going to the facilitation centres, which have been set-up. u The users will have multiple options to make payments in the online mode

either through credit cards or the Internet banking facility. Besides this, the traditional payment through demand draft would be accepted against a system-generated challan at the specified bank branches across the country. u The system would also enable the stakeholder to track the service request

through a Service Request Number (SRN) The statutory filing of forms and returns in the offices of RoCs is now on the basis of new E-forms only; all manual filing of documents has been discontinued.

Permanent documents of existing companies like, Memorandum of Association, Articles of Association, current charge documents, etc. are presently maintained in paper form across various Registrar of Companies (RoC) offices. Almost all of these

Para 29.4

COMPANY LAW IN A COMPUTERISED ENVIRONMENT

708

documents have been converted into electronic format. The scope of E-filing covers only the offices of RoCs, Regional Directors and the Headquarters at New Delhi and it does not include Official Liquidators, Tribunal and Courts.

The present scope of the MCA 21 includes services provided by the Secretariat at New Delhi, the four Regional Directorates (RDs) and the 20 offices of the Registrar of Companies (RoC) located all over the country. The E-filing facility includes: u Registration and incorporation of new companies u Filing of Annual Returns and Balance Sheets u Filing of forms for change of names/address/Director’s details u Registration and verification of charges u Inspection of documents u Applications for various statutory services from MCA u Investor grievance redressal u Allotment, change in particulars and surrender of director identification

number u Refund of fees paid

For the purpose of standardization and better understanding, the proposed e-Forms have been grouped under the following broad categories : (a) New Company Registration - All matter relating to incorporation of company including Simplified Proforma for Incorporating Company Electronically, filling of Memorandum of Association, Article of Association, registration of companies for undertaking CSR activities etc. can be done electronically. (b) Compliance Related Filing - Whether annually or event based include Annual Return, Balance Sheet and Profit & Loss Account, Return of allotment, Return of buy back of securities, Return of deposits, Return of appointment of managing director, whole-time director, Notice of appointment of auditor, Statutory report, Cost audit report, etc. (c) Change services - It covers matters in respect of any change in the capital structure, changes in the registered office or the persons appointed as directors, secretaries and authorized representatives. (d) Charge Management - For registration of charge created or modified and satisfaction of charge, to be filed with the ROC. It also includes filing of eForms for appointment and cessation of receiver and filing of accounts by receiver. Various Forms have been deleted which includes form, relating to charges. (e) Investor Services - E-filing system accepts complaints filed against a company by an investor as part of investor services. There is a specific e-Form for this purpose. (f) Application for ROCs approval - ROC is having powers to give direction in relation to the matters pertaining to the change of name of an existing company and the conversion of a public company to private company. In addition, ROC approval is required in case of extension of time period for

709

MCA-21 VERSION 3

Para 29.5

holding AGM, holding AGM at place other than registered address, declaring a company as defunct, extension of the period of annual accounts, amalgamation of companies, Forms relating to winding up, etc. The MCA has also prescribed several new e-Forms, for which there were no prescribed Forms available. (g) Approval services (Central Government and Regional Directors) – This covers form for intimation of appointment of cost auditor by the company to the Central Government and various approval services from the Regional Directors including application for removal of auditors before expiry of term, application for extension of time, shifting of registered office from one state to another etc. (h) Informational Services—It covers those forms which are to be filed with ROC for informational purposes, in compliance with the provisions of the Companies Act, viz., declaration of solvency in case company decides to buy back its shares, form for filing of resolutions and agreements, form regarding place where books of account are kept, form in case company decides to transfer its shares to another company, form regarding order received from Court or Company Law Board, etc. (i) DIN Services - allotment of director identification number, surrender of DIN and change in particulars of directors to be given to the Central Government.

In the e-filing system search facilities are available for viewing public documents, getting certified copies, finding the Corporate Identity Number (CIN), checking company name, finding name availability. The categories of public documents includes incorporation documents, charge documents, annual returns and balance sheets, change in directors and other documents, charge documents, annual returns and balance sheets, change in directors and other documents.

29.5 MCA-21 Version 3 The Ministry of Corporate Affairs launched MCA-21 Version 3.0 or V3 in 2022. The new version V3 is being rolled out in a phased manner. Firstly, the features of e-book modules, e-consultation and new mail services for MCA officers was introduced. This was followed by the rolling out of e-forms pertaining to the Limited Liability Partnerships (LLPs). In August 2022 and January 2023, majority of web-based company forms were rolled out on V3*. This will facilitate full automation of e-filling relating to the Companies Act as well as Limited Liability Partnership Act, 2008.

The key difference between V2 and V3 are: 1. E-forms: V2 portal required the e-forms to be downloaded, filled, and then uploaded on the portal. In V3, the e-forms are required to be filled and submitted online. The user also has the option to save a partially filled e-form and file it later at his convenience.

2. Login-Id and OTP: In V2, the users were required to create a specific use ID, whereas in V3 the user ID has been set by default as the email ID for professionals and CIN for corporates. *General Circular No. 01/2023 dated January 9, 2023.

Para 29.6

COMPANY LAW IN A COMPUTERISED ENVIRONMENT

710

3. OTP Authentication: To enhance the security, an OTP authentication has been introduced. Every time the business user logs in to the MCA website from a different device or login after 30 days or encounters two failed attempts, an OTP will be sent to the registered mobile and email address given at the time of creating login credentials to ensure the authenticity of the user.

4. My application: A new feature, “My application” has been introduced in V3, which is personalised for the user. This feature is in addition to “My Workspace” feature in V2 which only displayed list of notices and circulars issued by MCA. “My application” facilitates the following activities: u View all the webforms filled by the user in the last 15 days. u Edit, upload, download, make payments, resubmit, check status. u Edit saved and submitted form application history after clicking on edit

action button. u Download the Filed form after clicking on Download the PDF action

button for the forms where status of SRN is pending DSC upload. u Make Payments after clicking on “Pay Fees” action button for the forms

where status of SRN is pending payment/payment incomplete. u Resubmit the Filed form after clicking on Resubmit action button for the

forms where status of SRN is “Resubmission required”.

Saved and Draft forms will be auto deleted if payment is not made withing 15 days after form Submission.

5. User Type – In V3, a user can be registered either as “Registered User” or “Business User”. Registered User has limited access to V3 portal whereas the Business Users can use all services under V3. The categories which are suitable for the company to register as a Business User are: u Company/LLP u Director/Designated Partner u Manager/Secretary/Authorized Representative u Officer in Default u Professional

Professional User which is a part of Business User in V3 was earlier termed as Practicing Professional in V2 portal.

29.6 Five Step e-Filing Process For e-filing, computer with window 2000 or later will be required. The other hardware/software requirements include Java Runtime Environment (Java version 8), internet connection to access MCA website with internet explorer 10 or above or Chrome 49 or above or Firefox 45 or above. Adobe acrobat 11 or above for e-form upload, scanner for scanning paper attachment and printer for printing bank challan or service fee payment receipt would also be needed. Pop-ups from MCA 21 portal must be enabled in the browser.

711

FIVE STEP E-FILING PROCESS

Para 29.6

Step 1 : Register Yourself u Only registered users will be allowed to do e-filing. u Registration is a simple one-time process, where guidance will be available

on MCA-21 portal to create your personalized login ID - this is to ensure security and also serves as a channel for providing you personalized information as the functionality evolves. u If you possess a Digital Signature Certificate (DSC) and if you intend to sign

the e-Forms as an authorised signatory, you will need to also register your DSC. You will need to Register your DSC every time you procure a new DSC or renew/revalidate your DSC. u A registered user on V2 need not register on V3. In V3, by default, the Login

Id would be CIN/LLPIN/FCRN for Company/LLP users and “Email ID” used to register for all other users.

Step 2 : Download e-Form u e-Forms are freely downloadable and are in the ‘PDF’ format. You will need

Adobe Reader v11 which is downloadable through link available on MCA-21 portal. In V3, there is no need to download the e-forms in the PDF format as they are required to be filled and submitted online. u There are new set of e-Forms available on MCA-21 portal and you may need

to familiarize yourself with the new set of e-Forms. u Instruction kits for each e-Form is also available alongside the

e-Forms.

Step 3 : Complete e-Form u e-Forms are essentially PDF documents, specifically tailored by MCA to

meet e-filing needs as required by the Companies Act. You may choose to fill in an e-Form offline at your convenience without staying connected to internet. These e-Forms can be filled-in and signed digitally. In V3, the e-forms are required to be filled and submitted online. The user also has the option to save a partially filled e-form and file it later at his convenience. u As a part of the simplification of form filing, certain fields can be filled-up

automatically by the System (to the extent such data is available in the database of MCA) by selecting the “pre-fill” option that is available in the form. u You will also be able to do “automated pre-scrutiny”, a step that will ensure

that your e-Form is complete in all respects and is good for e-filing. u You may also attach supporting documents, where applicable, but please

make sure that these are also in PDF format - support for conversion of popular formats such as Microsoft Office into PDF is made available in the MCA-21 portal. u Make sure that you keep the size of your attachments minimal, wherever

possible. u Sign the e-Form using the Digital Signature Certificate.

Para 29.6

COMPANY LAW IN A COMPUTERISED ENVIRONMENT

712

u If more than one signatory is involved, you can send the e-Form either on

suitable media or as an e-mail attachment (or transfer a file over the network) to other individuals who can also sign digitally. u Multiple signatures can be applied on a given e-Form, but just make sure that

contents of the e-Form are not altered after it has been signed, in which case the document will become invalid and will be rejected during the e-filing process. u After all individuals have digitally signed the form, it is ready for submission.

Step 4 : Submit e-Form u You will need to connect to the Internet if you want to carry out e-Filing. u Submission will need to be made at the MCA-21 portal using specialized

functionality that is provided. u Sending the e-Form by email DOES NOT constitute e-Filing and should be

avoided. u Submission of e-Form will generally take a couple of minutes and will

depend on the size of e-Form/attachments and the speed/quality of your Internet connection - better the connection, faster the process. u If the e-Form is defective as may be identified by the MCA-21 system during

submission, it will be rejected and returned to the user with clear details of the nature of the defect - such defect could be a result of incorrect data that may have been entered in the e-Form or due to missing or invalid digital signatures. u If your e-Form is correct in all respects, you can proceed to the next step. u It is advisable to save a copy of the document before submission (using

submit button) as a part of your records.

Step 5 : Make Payment u Fee calculation will be done automatically by the system as applicable under

law and the fee for the service will be displayed to the user. u MCA-21 system supports following methods of payment :

(i) Credit card/prepaid card (ii) Internet banking (iii) UPI (iv) Offline Challan (v) Pay Later For online mode of payment, the user will be redirected to the NTRP/Bharatkosh website where Depositor s details and purpose for the transaction would be shown. The Non-Tax Receipt Portal (NTRP) is the initiative of the Controller General of Accounts, Ministry of Finance, Government of India to provide one stop services to deposit any fees/fine/other money into the Government Account. It provides 24×7 year-round electronic services to deposit the money into Government Account using internet-based payment technologies to the users at the doorstep through the web-based portal.

713

TEST YOUR KNOWLEDGE

The concerned bank branch will send data in e-form to MCA to acknowledge the payment that is made by you.

Filing will be completed once the necessary payment is remitted either through electronic payment means or through the challan based method.

Test your knowledge 1. What is e-filing? State the advantages of e-filing.

2. Briefly describe the key features of MCA-21 programme.

Company Law AUTHOR PUBLISHER DATE OF PUBLICATION EDITION ISBN NO NO. OF PAGES BINDING TYPE

: : : : : : :

G.K. KAPOOR, SANJAY DHAMIJA TAXMANN JANUARY 2024 26TH EDITION 9789357787604 750 PAPERBACK

Rs. 850 | USD 41

Description This book aims to represent an impressive and judicious blending of the provisions of the Companies Act, the latest & landmark Judicial Decisions, and the latest Clarifications issued

by SEBI. The text is interspersed with interpretations, explanations and illustrations to help the students assimilate the provisions better.

It’s an invaluable resource for students pursuing degrees like B.Com., BBA, BBS, LL.B., and professional courses such as CFA, CA, CS, and CMA. The Present Publication is the 26th Edition, updated till 31st December 2023. This book is authored by Dr G.K. Kapoor & Dr Sanjay Dhamija, with the following noteworthy features: u Highlights of the 26th Edition  [Case Laws] up to 31st December 2023 have been incorporated  [Amendment in Rules] up to 31st December 2023 have been incorporated  [Important Circulars | Notifications | Amendments] upto 31st December

2023 have been incorporated at appropriate places  [Others] u Launch of MCA 21 Version 3 (V3) u Setting up for the Centre for Processing of Accelerated Corporate Exit (C-PACE) u Revised Definition of a Small Company u [Simple & Lucid Language] The provisions of the law are presented in a lucid and straightforward style, backed by the most up-to-date case decisions u [Specimen Notices, Minutes and Resolutions] have been given at relevant places to help students answer questions u [Latest & Landmark Case Laws] have been provided throughout the book u [Summaries of Each Chapter] are provided at the end of each chapter, containing substantive provisions of the law u [Hints to Questions & Practical Problems] selected from past examination questions of various universities and professional institutes have been provided in this book u [Section-wise Subject Index] to ease the navigation for the reader u [Student-Oriented Book] This book has been developed keeping in mind the following factors:  Interaction of the author/teacher with their students in the classroom  Shaped by the author/teacher’s experience of teaching the subject matter at

different levels  Reactions and responses of students have also been incorporated at different

places in the book u [Six-sigma Approach] to achieve the benchmark of ‘zero-error’

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