Summary Notes on Company Law by Krishan Commerce Classes

KRISHAN COMMERCE CLASSES Company law 1

6 7

Minimum numbers of members in a private company minimum paid up capital in a private company Minimum numbers of members in a public company minimum paid up capital in a public company maximum numbers of members in private company maximum numbers of members in public company If minimum number of members falls below limit

8

Voting rights ( 177 to 185)

9 10

notice period (minimum) Minimum numbers of directors in a public company Minimum numbers of directors in a private company Maximum numbers of directors in a public company

2. 3 4 5

11 12

13 14

Minimum numbers of directors in a private company maximum numbers of directorships

2 1 lac 7 5 lac 50 no limit - Up to 6 M – company liable for any debt incurred - After that- all members aware of that fact 1. By show of hands – one member = one vote - Proxy may vote by show of hands if AOA so provides - Proxy – no right to speak, but to vote 2. By poll - 1 share – 1 vote - Proxy – no right to speak, but to vote 21 clear days 3 2 12 or mentioned in first registered AOA, whichever is higher no limit 15

ADDRESS: B-20-1458, KRISHNA NAGAR, PAU ROAD. LUDHIANA.M.No-9888745849, 9780808413

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KRISHAN COMMERCE CLASSES 15

statutory general meeting -

16

AGM -

17 18 19

Section 165 Only by public co. having share capital Within 6 month from the date of certificate to commence business ,but not earlier than 1 month At least 21 clear days notice Business - special Documents with notice- statutory report + proxy form +admission card At any time + any day + at any place ( law silent ) consequences of default- fine up to Rs. 5000 f or every officer in def ault + Tribunal may also order for compulsory winding up if default in sending SR or in holding SGM Shorter notice – with consent of members holding at least 95% PUC/voting power Section 166 to 168 By every company Once in every calendar ( but it would be enough to convene in year of I nc and subsequent year, but not thereafter) st 1 AGM – within 18 M of incorporation & within 9 M of end of FY Subsequent AGM- within 15 months months of previous AGM and and within 6 M of end of FY( ROC may grant extension up to 3 months) Notice – atleast 21 clear days Business- ordinary(4)+special ordinary(4)+special At RO or other place within city, town or village in which RO situated + during business hrs + at any day other than public holiday Documents with notice- explanatory statement + proxy f orm + admission card Shorter notice- with the consent of all members entitled to vote Consequences of default- fine up to Rs. 50000 & Rs. 2 500 Per day for company and every officer in default

Appointment of sole selling agent without reserving any condition Maintain index of members when no. of members exceed Maintain index of debenture holders when no. of debenture holders exceed of auditor u/s

void ab initio 50 50









KRISHAN COMMERCE CLASSES incorporation by BOD in AGM by shareholders CG shall appoint paid up share capital authorized share capita paid up capital 5% p.a 6% 5% of issue price or prescribed in AOA , whichever is lower 2.5% of issue price or prescribed in AOA, whichever is lower 30

23 24 25 26 27 28 29 30

Appointment of subsequent auditors If auditor not appointed in agm Dividend is paid on Stamp duty is paid on the basis of Called up capital – calls in arrears Interest on calls in arrears as per table-a Interest on calls in advance as per table-a Maximum underwriting commission on shares

31

Maximum underwriting commission on debentures

32

Payment of dividend within --- numbers days from declaration Declaration of interim dividend by BOD Declaration of final dividend by shareholders in AGM Number of scrutineers in case of voting u/s 192a 1 Number of scrutineers in case of voting by poll 2 Quorum in case of private company 2 Quorum in case of public company 5 If dividend not claimed with in ---- number of years 7, investor education and from date of transfer to unclaimed dividend protection fund account, transfer it to ------ a/c A certificate of incorporation is conclusive evidence Contracts before incorporation - pre-incorporation/Preliminary pre-incorporation/Preliminary contracts void-ab-initio - become valid if adopted by co. Contracts after incorporation but before certificate - provisional contracts to commence business - valid from the date of certificate to commence business Promoter defined under ----- section of companies not defined act,1956 Dividend out of capital profits power in AOA + realized CP + left after revaluation of other

33 34 35 36 37 38 39

40 41

42

43 44









KRISHAN COMMERCE CLASSES 46 47 48 49 50 51 52 53 54

Interest on capital Maximum tenure of preference share capital Dividend Interest Proceeding of a meeting is recorded in the Any business other than ordinary business is called A company whose name has been struck off from the register of companies Authorities under CG

59 60 61 62 63 64 65 66 67 68 69 70 71

MCA+RD+ROC

Starting of RO -

55 56 57 58

reduction of capital CG approval 20 years an appropriation of profits charge against profit minutes special business defunct company

within 30 days of incorporation or certificate to commence business, whichever is earlier - notice to ROC regarding situation of RO- within 30 days of incorporation Change of RO within city BR +notice to ROC Change of RO city to city, but roc changed SR + RD + notice to both ROC change of RO from city to city, roc not changed SR + notice to ROC change of RO from SR + CLB + notice to ROC(30 d ) +permission from state to state debenture holders , creditors change in name CG+SR cg can raise objection on name within ____ year of 1 incorporation reduction in capital SR + Court buyback up to 10% of paid up capital +reserves BR buyback for more than 10% of paid up capital + SR Reserves OR simple majority SR 3 times majority business to be transacted in the meeting agenda presiding officer of the meeting chairman securities bought back should be extinguished 7 days of completion of bb within bb must be completed with in 12 months maximum premium on issue of shares no limit maximum discount on issue of shares 10% + CG+ issue within 2 months of approval + atleast after 1 year from certificate to commence business









KRISHAN COMMERCE CLASSES 74 75 76 77 78 79

Acts beyond MOA act beyond directors but within moa change in object clause OR SR maximum limit u/s 372a

80 81 82

up to above limit if above limit exceeded audit committee compulsory u/s 292a if

83

appointment of SSD compulsory, if

84 85

directors liable to retire by rotation retiring directors - if AOA requires qualification - max value< Rs. 5000 shares - if single share > Rs. 5000, then hold only 1 share - Tenure- within 2 m of appointment - if not allotted within 2 M - vacate office u/s 272 & u/s 283 appointment of additional of additional - BOD( by BR or circular resolution) directors by - powers in AOA - term- till the ensuing AGM filling casual vacancy - By BOD (only Resolution in BM) irrespective of powers given in AOA - tenure- till the term of dir in whose place he is appointed appointment of government auditor By C and AG of India a company promoting art, science, commerce, - S- 25 co. or licensed social welfare co.

86

87

88

89 90

void ab initio can be ratified SR simple majority 3 times majority 60%(FR+PUC) or 100% x FR, whichever is higher unanimous BR SR - PUC>5 crore - co.- public - co.- public - PUC>5 crore - no. of SS- > 1000 - SS having shares of NV of <20000 - max. tenure- 3 y >2/3 of total strength >1/3 of above









KRISHAN COMMERCE CLASSES -

-

91

92 93

94

an alternate director is appointed by -

may or may not end the name with pvt ltd or ltd cg may revoke license, if T&C violated

BOD (BR or circular resolution) powers in AOA absence of original original dir from state state > 3 months - tenure- till original dir returns to state or original dir’s term expires appointment of more than 1 dir by single - pass unanimous res. resolution - then appoint holding of office of office or place of profit by director - when getting any remuneration over & above the remuneration to which he is entitled as a director 314(1A)S - Dir – without R - following covered if their total monthly remuneration is 50000 or more, A. relative of a director B. firm in which director is a partner C. Pvt. Co. in which director is a director or member. either holding company or its subsidiary company

95 -

-

314(1B) following covered if their total monthly more , remuneration is 250000 or more, A. relative of a director or manager B. firm in which director is a partner C. Pvt. Co. in which director or relative is a director or member. notes: 1. holding and subsidiary not covered 2. directors excluded 3. form for obtaining cg approval – eform – 24b

CG+SR(both previous approval)











KRISHAN COMMERCE CLASSES 97 98 99 100 101 102 103

104

105

maximum remuneration under section 198 11% of NP removal of director u/s 284 SN + or in GM special notice at least 14 days before GM ordinary business Dividend declaration + books of a/c +auditor(app)+Dir +auditor(app)+Dir (app) special business shall always requires SR false, (e.g.- section 224a) disqualification u/s 274(1)(g) while excluding total strength u/s 255, directors to - nominee director be excluded - director u/s 408 - dir appointed by BIFR disqualification u/s 274 - found to be of unsound mind - an undischarged insolvent - applied to be adjudicated as insolvent - court order u/s 203 - convicted in offence involving moral turpitude and imprisonment for more than 6 m & 5 y not elapsed from such conviction - call money due for more than 6 months vacation of office u/s 283 - found to be of unsound mind - applied to be adjudicated as insolvent - court order u/s 203 - convicted in offence involving moral turpitude and imprisonment for more than 6 months - call money due for more than 6 month - not attended 3 consecutive board meeting or for 3 months without leave - failure to acquire qualification shares within 2 m of appointment - removal u/s 284 - default u/s 295 - no disclosure u/s 299









KRISHAN COMMERCE CLASSES

111 112.

113.

114

115 116 117 + 118

119

- to support share price during sluggish market - to provide an additional exit route to shareholders sources of BB Free reserves + security premium + proceeds of new issue prohibition of BB - through subsidiary - Through investment co. - when default in deposit or loan or its interest, dividend, redemption of PS/debt - non-compliance u/s 159(AR),207,211(AA) Modes of BB - from odd lots - from employees - from existing SH on proportionate basis - from open MKT proxy - deposit of proxy instrument instrument with co. - 48 hrs before the time for holding meeting or shorter period as per AOA - right to vote, but not to speak unless AOA so provides Recording of minutes Within 30 days of conclusion of meeting Filing of prescribed documents by a foreign With 30 days from date of company establishment in India maximum numbers of partners in a Effects of illegal association firm - cannot enter into any contract - in a banking firm - 10 - can’t sue any of its members & - other than banking firm - 20 outsiders - if above limits exceed – create - every member personally liable company for liabilities incurred - if not created – becomes illegal - fine up to Rs. 10000 on members association Filing of particulars of charge

Within 30 days of creation +









KRISHAN COMMERCE CLASSES 124

EGM on requisition

Simply speaking, this is a case when a member wants the BOD to convene EGM, and deposit with the company a requisition, now it becomes the duty of BOD to arrange for meeting, if BOD does not do so, requisitionists themselves can convene the EGM.

125

126

get CC - Calling of EGM on requisition by BODBOD within 21 days of deposit of requisition - Holding of EGM by BODBOD- within 45 days of deposit of requisition - Calling of EGM by requisitionistsrequisitionists- within 3 months from the date of deposit of requisition

Book closure ( when Books of members are closed) - 45 days - Max. period for which register of members can be closed in a year - 30 days - Max period for which register of members can be closed at any one time Refund of application Section 69(5) money in case of non- receipt of minimum subscription within 120 days of date of issue of prospectus - 130 days without interest - After 130 days with interest @ % p.a SEBI guidelines - in case of non- receipt of 90% of issued amount within 60 days from date of closure of issue - 78 days without interest - Beyond 78 days with interest @ 15%










128 Share certificate vs. share warrant

Basis of distinction Who can issue Power in AOA Prior approval of CG stamp duty Whether negotiable instrument Dividend payment Transfer Membership Shares

Share certificate Any company having share capital Not required not required payable on transfer No

Share warrant Public co. Ltd. By shares

To registered holder

To bearer of coupons attached to warrants By deliver

By registering a proper transfer deed Holder is a member Share certificate can be issued in respect of partly paid up or fully paid up shares

129

Bonus shares

-

130

Basis of distinction

Bonus shares

Required required not payable Yes

Holder not a member Share warrant can be issued in respect of fully of fully paid up shares

Powers in AOA Only to existing shareholders BR recommending its decision to issue BS OR in GM for approving above BR Follow SEBI guidelines (listed co.) Bonus shares = fully PU Sources of Bonus issue- CRR + SP +FR Right shares










131

132

132.

133.

profits/reserves Corporation vs. company

When court may lift corporate veil - For protection of revenue- when co. making effort to evade tax - For determination of enemy character of co. – - Where co. being used for some illegal or improper purpose - Company acting as an agent of shareholders Features of company Transferability Shares freely transferable in case of public company Separate legal entity Separate identity in the eyes of law (read soloman case) Common seal Co. having no limbs so provided with this tool Perpetual succession Members come and go, but company remains Limited liability As per the case Sue and be sued Co. can sue and be sued in its own name Assets Co. can hold assets in its own name Disadvantages of a corporate form of enterprise - Excessive formalities – involving considerable time + money - Excessive tax burden – income taxable at maximum marginal rate i.e 30% - Greater CSR - Detailed winding up procedure - Dilution in secrecy in business due to excessive statutory disclosure requirements

134 135

Company u/s 2(10) & 3 Corporation = Body corporate u/s 2(7)

Subsidiary company ( section – 4) Composition of BOD controlled by other company or >50% shares with voting rights or voting rights held by other company Unlimited company











KRISHAN COMMERCE CLASSES Inter-corporate Loans and Investments 1) 2) 3) 4) 5)

APPLICABILITY WHEN APPLICABLE PASSING OF UNANIMOUS BR PRIOR APPROVAL OF S/H BY WAY OF SR METHOD OF PASSING SR

6)

NOT PRIOR APPROVAL REQUIRED, ONLY IN CASE OF GUARANTEE.

PUBLIC COMPANY AS STATED ABOVE INTER CORPORATE L/I/G/S WITHIN CEILING LIMIT BEYOND CEILING LIMIT UNLISTED COMPANY – IN GM LISTED CO. – L/G/S = POSTAL BALLOT U/S 192A - INVESTMENT = EITHER POSTAL BALLOT OR IN GM  EXCEPTIONAL CIRCUMSTANCES EXISTS  UNANIMOUS BR HAS BEEN PASSED ACCORDING TO PROVISIONS OF THIS SECTION

BR IS CONFIRMED BY MEMBERS WITHIN 12 MONTHS IN EGM OR ENSURING AGM WHICHEVER IS EARLIER. IF THERE IS ANY DEFAULT MADE IN AS PER T&C OF LOAN AND LOAN IS BEYOND CEILING LIMIT . NOT LESS THAN PREVAILING PRIME LENDING RATE OF RBI ENTRY IN STATUTORY REGISTER WITHIN 7 DAYS 

7)

APPROVAL OF PFI’S

8)

INTEREST RATE

9)

PROVISIONS OF SUB SECTION 5









KRISHAN COMMERCE CLASSES Dividend Sources of Dividend Payment of Dividend

Current years profits + Accumulated Reserves + Government Grants Declared dividend shall be deposited in separate bank account within 5 days from the date of declaration. Declared dividend shall be paid to the shareholders within 30 days from the date of declaration. If the dividend is not paid or not claimed, then it shall be deposit in dividend Unpaid and Unclaimed Account within 7 days from the lapse of 30 days . If Dividend is not paid/ claimed up to 7 years from the date of transfer to unpaid 7 Unclaimed Account, then such amount shall be transfer to IEPF (Investor Education Protection fund) account after the lapse of such 7 years.

Transfer to Reserves If rate of Dividend

Transfer to Reserve

≤10% of PUC

Nil Minimum 2.5% of Profit after Tax Minimum 5% of Profit after Tax Minimum 7.5% of Profit after Tax Minimum 10% of Profit after Tax

10-12.5% of PUC 12.5-15% of PUC 15-20% of PUC ≥20% of PUC









KRISHAN COMMERCE CLASSES Interest on capital

Dividend to paid within 30 days of declaration Exceptions

Companies (transfer of current profits to Reserves) Rules, 1975 {RULE- 3} Transfer to reserves > 10% of Profit after Tax

Power in AOA or SR + CG + Interest to be capitalized to ‘Building h igher in construction a/c’ or P& M a/c + max. int =4%, but CG may allow higher special circumstances Where the Dividend could not be paid by reason of the operation of any law. Where a shareholder has given directions to the company regarding the payment of dividend and these directions cannot be complied with; Where there is dispute regarding the right to receive dividend; Where the Dividend has been lawfully adjusted by the company against any sum due to it from the shareholder; Where for any other reason for failure to pay the dividend or to post the warrant was not due to any default on the part of the Company.

If Dividend is being distributed a. Company has not issued bonus shares in the current year or any preceeding 3 financial years. - Rate of proposed dividend ≥ average rate of 3 preceeding financial years. b.

issued bonus shares in the current year or any preceeding Company has issued bonus 3 financial years. - Amount of proposed dividend ≥ average amount of 3









KRISHAN COMMERCE CLASSES Sole Selling Agent Appointment of SSA by BOD





With a condition that appointment shall cease to be valid if it is not approved by the company in the First General Meeting held after the date on which the appointment is made – appointment is valid. Without condition – appointment appointment is void ab initio. Note: if with condition appointed then in GM, appointment may be disapproved disapproved and appointment is valid only upto such disapproval.

SSA Substantial interest by SSA

May be Individual, Firm or any body corporate  In relation to an Individual , means the beneficial interest held by such individual or any of its relatives, whether singly or taken together in the shares of the Company, the aggregate amount paid-up on which exceeds 5,00,000 Rs or 5% of paid up capital of the Company, whichever is lesser;  In relation to a Firm, means the beneficial interest held by one or more partners of the firm or any relative of such partner, whether singly or taken together, in the shares of the Company, the aggregate amount paid up on which exceeds 5,00,000 Rs. or 5% of the paid up capital of the company, whichever is lesser;

If SSA having

Previous approval of CG










 

in relation to, or of gross negligence in, the conduct of his duty as the sole selling agent. Where the sole selling agent is responsible for the termination of sole selling agency. In other cases compensation for loss of office may be paid:  Permissible period: lower ofi. The unexpired tenure of SSA; or ii. 3 years.  Basis: ‘average remuneration’ shall be based on remuneration actually earned by SSA during: i. Immediately preceding preceding 3 years; or ii. Such lesser period for which SSA was in office.

Oppression vs. Mis- Management

Oppression (Sec. 397) i.

Oppression shall be present and

Mis-Management (Sec. 398) 1.

Mis-Management may be












Summary Notes on Company Law by Krishan Commerce Classes

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