Tag Archives: Companies Bill 2012

CONTRACTS INVOLVING DIRECTORS


Contracts in which directors are involved are one of major corporate governance issue. Many corporate failures may be attributed to contracts related to directors under some intention which are not in consistency with fiduciary duties of directors. We have already discussed contract in which directors are interested and related party transaction in this earlier post.

REGISTER OF CONTRACTS OR ARRANGEMENTS IN WHICH DIRECTORS ARE INTERESTED (SECTION 189):

Every director or key managerial personnel shell within a period of thirty days of his appointment disclose to the company particulars relating to his concern or interest in other companies or organisation.

Continue reading

LOAN AND INVESTMENT


LOAN TO DIRECTORS, ETC. (SECTION 185):

No company shall, directly or indirectly, advance any loan, including any loan represented by a book debt, to any of its directors or to any other person in whom the director is interested or give any guarantee or provide any security in connection with any loan taken by him or such other person.

This provision shall not apply to –

Continue reading

DIRECTOR IDENTIFICATION AND REGISTER OF DIRECTOR


English: Sir Ratan Tata, founder of Sir Ratan ...

English: Sir Ratan Tata, founder of Sir Ratan Tata Trust (Photo credit: Wikipedia)

Director identification Number is a prerequisite for appointment as director in a company in India. Same time Register of Directors and Key Managerial personnel serve the purpose of Record of interests of these persons in company and otherwise.

DIRECTOR IDENTIFICATION NUMBER (SECTIONS 153 – 159)

Every individual intending to be appointed as director of a company shall make an application for allotment for Director Identification Number (DIN) to the Central government. (Section 153)

Continue reading

BOOKS OF ACCOUNTS


The Financial Statements of a company is most important document until recent past, when non – financial reporting started to gain its momentum. This is a reporting of growth in business in monetary units.

BOOK OF ACCOUNTS (SECTION 128):

Every company shall prepare and keep at its registered office books of accounts and other relevant books and papers and financial statement for every financial year. These books must give a true and fair view of the state of affairs of the company and its branch offices. These books must explain the transactions effected both at the registered office and its branches.  These books shall be kept on actual basis and double entry system of accounting.

Continue reading

RESOLUTION, MINUTES AND REPORT


Recently we have discussed “General Meetings”, “Preparing General Meetings” and “Proxies, Voting and Polling”. The provision contains here also applicable to all company meetings unless context restrict them to General Meeting.

RESOLUTION (SECTIONS 114):

The Companies Act, 2013 does not define resolution. Resolution is a formal statement of a decision or expression of opinion put before or adopted by an assembly. This may be ordinary resolution or special resolution.

Continue reading

PROXIES, VOTES AND POLLING


Recently we have discussed “General Meetings” and “Preparing General Meetings”. In this post we will discuss things during meetings like Proxies, voting, poll and related matters.

Proxies are one of the beauties of corporate legislations. Proxies have their important in corporate decision making through voting and polls.

Continue reading

PREPARING GENERAL MEETING


In last post “General Meetings”, we discussed what may be possible dates for general meeting and the place where it may be held. How we manage the event is depend upon our own choice. But there are some other legal formalities to comply with. These may be –

Continue reading

GENERAL MEETINGS


A company may have many kinds of meetings; general meetings are one among them. In very simple terms, a meeting of general body may be called general meeting. General meeting comprises of all general members of an organisation that is company in our case.

A general meeting may be Annual General Meeting (AGM) or Extra – ordinary General Meeting (EGM).

Continue reading

REGISTERS AND ANNUAL RETURN


In last post, we discussed about register of members, register of debenture – holders and register of other security holders. Now, we will discuss, some other provisions related to these registers and also about annual return.

PLACE OF KEEPING AND INSPECTION OF REGISTERS AND RETURNS (SECTION 94):

The registers required to be kept and maintained by a company under section 88 and copies of the annual return filed under section 92 shall be kept at the registered office of the company.

Continue reading

MEMBERS AND DEBENTURES – HOLDERS


Clause 55 of Section 2 says that member in relation to a company means –

(a)  the subscriber to the memorandum of the company who shall be deemed to have agreed to become member of the company, and on its registration shall be entered as member in its register of member;

(b) every other person who agrees in writing to become a member of the company and whose name is entered in the register of the company; and

(c)  every person holding shares of the company and whose name is entered as a beneficial owner in the records of a depository.

On the other hand, a holder of a debentures is called a debentures – holder.

Continue reading

CHARGES


A Charge under the Companies Act, 2013 means an interest or lien created on the property and assets of the company or any of its undertakings or both as security and includes mortgage.

REGISTRATION OF CHARGES (SECTION 77):

Every company creating a charge shall register the particulars of charge signed by the company and its charge – holder together with the instruments creating such charge with the Registrar within thirty days of its creation.

Continue reading

DEPOSITS (Companies Act 2013)


After the commencement of present Act of 2013, or more correctly, on issue of Notification by Government of India making Section 73 effective; no company shall invite, accept or renew deposits from the public except in a manner provided under Chapter V of the Act. The chapter V has total four Sections i.e. Section 73 to 76 (both inclusive).

This prohibition does not apply to a banking company, a non – banking financial company as well as any other class of company as specified by the Central government. The Central government may specify any company after consultation with the Reserve Bank of India.

Continue reading

DEBENTURE (Companies Act 2013)


A bond from the Dutch East India Company, dati...

A bond from the Dutch East India Company, dating from 7 November 1623, for the amount of 2,400 florins. (Photo credit: Wikipedia)

Debenture is most important instrument to raise capital for a company. A company use debenture to raise debt capital. Popularly, debenture issued by public sector companies with government approval is called bonds.

Section 2 (30) of the Companies Act, 2013 define inclusively debenture as “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.

Continue reading

SHARE CAPITAL (Companies Act, 2013)


We have discussed earlier post The Company under the Companies Bill 2012 which is still relevant when the bill become Act; all companies do not have share capital. Only companies limited by shares have share capital.

KIND OF SHARE CAPITAL (SECTION 43):

The share capital of companies limited by share shall be of two kinds, namely;

(a)  equity share capital;

(b) Preference share capital.

Here, use of two terms “Shall be” and “and” denote this is a requirement to have both kind of share capital but, according to further reading, company may have zero equity or preference share capital.

Continue reading

MAJOR CAUTIONS UNDER PUBLIC OFFER (COMPANIES ACT, 2013)


In recent posts, we discussed provisions of Chapter III of the Companies Act, 2013. This is time to discuss major penal provisions in this chapter.

CRIMINAL LIABILITY FOR MIS-STATEMENT IN PROSPECTUS (SECTION 34):

Where a prospectus, issued, circulated or distributed:

a)    includes any statement which is untrue or misleading in form or context in which it is included; or

b)   where any inclusion or omission of any matter is likely to mislead;

Every person who authorises the issue of such prospectus shall be liable under section 447 i.e. fraud.

Continue reading

ALLOTMENT OF SECURITIES (Companies Act 2013)


In recent posts, we have discussed matters related to prospectus. In this post we will discuss, matters related to issue and allotment of securities following public offer.

SECURITIES IN DEMATERIALISED FORM (SECTION 29):

Under this section;

  1. Every company making public offer; and
  2. Such other class or classes of companies as may be prescribed

shall issue the securities only in the dematerialised form.

When any company issue its securities in dematerialised form, provisions of the Depositories Act, 1996 and regulations made under that Act shall be applicable.

There is no bar for any other company to issue its securities in any form. Any other company may convert its securities into dematerialised form.

Continue reading

Effective Provisions of Companies Act, 2013 as on 12th September 2013


On 30th August 2013 (Bhadrapada 8, 1935 Saka), Ministry of Law and Justice issued a notification regarding the Companies Act, 2013 immediately after it received assent of President of India. Only section 1 of the Act of 2013 came into effect from that day. Section 1 as usual deals with short title, Extent, commencement and application.

Earlier Act of 1956 was applicable to whole of India with some modification related to Indian State of Nagaland, but not applicable Indian state of Sikkim. Act of 2013 is applicable to whole of India including Sikkim and without any exception to any state. Sub – section 4 of Section 1 of Act of 2013 lists out some exception regarding particular classes of companies. However, Act of 2013 is not made effective to Sikkim as on 12th September 2013.

Continue reading