BUSINESS LAW
Module I: Companies Act, 1956
• Meaning, definition and characteristics of company
• Type of companies and features of various types of companies
• Incorporation of companies
• Memorandum and articles of Association
• Prospectus and commencement of Business'
• Transfer and transmission of shares
• Share warrant and share certificate
• Membership of companies
• Meetings;
• Directors appointment, powers, duties and liabilities,Accounts and Audit
• Winding up of companies.
• Cases:
• Salomon v Salomon Ltd (part 3 page 2 N D Kapoor)
• Macaura v Northern assurance Co. Ltd. (
• The ashbury Railway carriage & Iron Co. v Riche
• Royal British Bank v Turquant
• A. V Mohan rao and another v M Kishan Rao, 2002 AIR(SC)2653
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1
Companies Act 1956
“Company” “Body Corporate” or “Corporation”
include a company incorporated outside India
but does not include
• A Corporation sole
• A Co-operative Society
• Any other body corporate not being a company
notified by the Central Government
Salient features of a Company
• The General Assembly
• The Board
• The Managing Director
2
Companies Act 1956
Definition of a “Company”
• “A voluntary association of individuals formed for some
common purpose. It has capital divided into parts, known as
shares. It is an artificial person created by a process of law. It
has a perpetual succession and a common seal.”
“Artificial Person” means – No body or soul
• Refer N D Kapoor for Lindley’s Definition
3
Companies Act 1956
Salient Features of a company (characteristics)
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Legal Entity
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Limited Liability
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Separate Property (wealth)
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Perpetual succession
Common seal: (no physical existence and hence acts through authorised
officers under the seal of the company)
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Transferability of interest
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Can sue and be sued in its own name
4
Companies Act 1956
Corporate Veil:
Corporate Veil of Distinct Legal Entity is not applicable where the court feels
that it has to expose the ingenuous persons behind the company or to find
out the purpose of incorporation. Corporate Veil is said to be lifted or
pierced when the court ignores the company and deals directly with the
members
Company’s Act provides the following cases where Corporate Veil is lifted
• Reduction of membership
• Failure to Refund the application money
• Mis-description of Company name
• Misrepresentation in the prospectus
• Fraudulent Conduct
• Holding and Subsidiary Companies
5
Companies Act 1956
Corporate Veil:
Judicial interpretations in lifting the corporate veil:
• Protection of Revenue (tax evasions)
• Prevention of Fraud or Improper conduct
• Determination of the character of the Company
• Where the company is used to avoid welfare legislation
• For determination of the technical competence of the company
6
Companies Act 1956
Types of Companies:
• Limited Company -a) Limited by Shares (both public and private
companies) and b) Limited by Guarantee not having share capital; c)
Limited by Guarantee having share capital also
• Unlimited Company
• Government Company
• Foreign Company
• Private Company
• Public Company
7
Companies Act 1956
Features of Private Companies:
• Minimum Two members-Maximum Fifty Members (excluding employee
members)-Joint shareholders treated as one member. No restrictions on
the number of debenture holders
• Minimum paid up capital of Rs1 lakh (Company’s amendment Act 2000)
• Minimum Two directors
• Consent of directors need not be filed with the Registrar
• Raises capital by private arrangement—public subscription not allowed.
Raises deposits only privately from members, directors or their relatives.
Debentures can be raised without any restriction
• Shares are not transferable except for the provision in the Articles
(Restriction not prohibition)
• No restriction on managerial remuneration
• “Private Limited” to be added the company name.
• Directors are not treated as employees
8
Companies Act 1956
Features of Private Companies:
• When issuing rights issues –need not be first offered to the existing
shareholders
• Directors need not retire by rotation
• Private company need not hold any statutory meeting or file a statutory
report
• Quorum required is two persons
• By virtue of restriction in public participation, a private company is exempt
from all the provisions of the Act relating to prospectus
• No restrictions on commencement of business
9
Companies Act 1956
Features of Public Company
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Minimum 7 members—No maximum Limit
Minimum Paid up capital of Rs5 lakh
Minimum three directors
Consent of directors to be filed with the ROC or sign an undertaking for
their qualification shares.
Raises capital by inviting public subscription or by private arrangement
May raise deposits subject to regulations
Shares are freely transferable—tradeable in the market
Quorum: 5 members personally present. Articles may provide for higher
number of members.
Restrictions on total managerial remuneration (check—restrictions-total
managerial remuneration cannot exceed 11% of the net profits)
The word “Limited” is added to the company’s name.
10
Companies Act 1956
Features of Public Company
• Private company gets converted to a Public company by default when the
conditions alter
• Petition shall be filed in such cases where conditions alter accidentally or
by inadvertence.
• No time limit to inform the ROC when Public limited company gets
converted to private limited. (conversion by default)
• Conversion by choice: Private to Public: Special Resolution required
providing for the change of name of the company; Articles to be changed;
File a prospectus or a statement in lieu of prospectus with the ROC; raising
the members to seven and raising the number of directors to three.
• Conversion of public limited to private limited company: Change in the
articles should be approved by the Central Government
11
Companies Act 1956
Incorporation of a Company : Check whether proposed name is
available and get the same from ROC in writing.
1.
Type of Company: People coming together shall subscribe their names to a
Memorandum of Association and also comply with other formalities with
the Registration of the company with the ROC. Company limited by shares
is the most popular type.
2.
Name of the Company
3.
Filing of documents with ROC: M/A; A/A; Agreement with any individual for
appointment as its MD or whole-time director or manager, List of Directors;
Declaration(Form No 1) stating that the requirements of Companies Act
have been complied with; Preparation of other documents.
4.
Payment of the required fees
5.
Obtaining the Certification of Incorporation.
6.
Obtaining the Certificate to Commence Business.
12
Companies Act 1956
Incorporation of a Company : List of Documents
•
Particulars in favour of one of the persons named in the M/A or
any other person authorised to file documents for Registration.
This will be on Non-judicial stamp paper
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Any other agreement which forms part and parcel of M/A and
A/A
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Any agreement which the company to be incorporated proposes
to enter into with any individual for appointment as its Managing
or Whole time director or manager.
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Original true copy of the Registrar of Companies’ letter intimating
about the availability of name.
13
Companies Act 1956
Incorporation of a Company : List of Documents
•
Form No 1 (declaration)—by an advocate of the Supreme Court or High
Court, an attorney or a pleader entitled to appear before the High Court
of a Secretary or a Chartered Accountant, in whole time practice in
India who is engaged in the formation of a company or by a person
named in the Articles as a director, manager, secretary of the company
that all the requirements of the Act and the rules there under have
been complied with
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Stamped and signed copy of the M/A and A/A
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Notice of the situation of the Regd office of the company in Form No 18
within 30 days of incorporation.
14
Companies Act 1956
Memorandum of Association:
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A fundamental document containing conditions upon which
the company is allowed to be formed.
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Twin purposes- shareholders know the field in which their
money is being used and outsiders know the objects of the
company
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Should be printed (laser print allowed)
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Suitable paragraphs with numbers
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Signed by each subscriber ( with address, description and
occupation) with minimum witness
15
Companies Act 1956
Clauses in M/A
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Name Clause
Regd Office clause
Objects –Main objects, Objects incidental or ancilliary and
other objects.
Powers clause
Non-trading companies when their operations extend
beyond one State, the States inwhcih they operate.
Capital Clause: Share Capital—initial capital subscribed by
the promoters.
16
Companies Act 1956
Articles of Association:Bye laws or rules that govern the management of its internal affairs and the
conduct of its business. It defines the powers of officers and the
relationship between the company and its members
A/A plays a subsidiary part to the M/A
M/A and A/A are contemporaneous documents which means uncertainty or
ambiguity can be understood by reference to one another.
17
Companies Act 1956
Articles of Association:
--A company shall have its own articles in the absence of which Provisions in
Table A given in schedule 1 of the Companies Act apply.
--Shall be printed divided into paragraphs and signed by each subscriber of
the M/A with details of address, occupation along with minimum
witnesses
--Conents of Articles:
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Share capital—including sub-divisions
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Lien on shares
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Calls on Shares
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Transfer/Transmission of Shares
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Forfeiture/Surrender of Shares
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Conversion of Shares into stock
18
Companies Act 1956
Articles of Association:
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Share Warrants
Alteration of Share Capital
General Meetings and Proceedings
Voting rights of members
Directors—first directors, directors for life, theie appointment,
remuneration, qualification, powers and proceedings of BOD meetings
Manager
Secretary
Dividends and Reserves
Accounts and Audit
Borrowing Powers
Capitalisation of Profits
Winding up
Adoption of Preliminary Contracts.
19
Companies Act 1956
Doctrine of Ultra Vires:
Activity beyond the powers of the company even though ratified by all
members will be ineffective.
Powers should be within the scope of M/A, sometimes implied.
Following powers should be explicit
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Acquiring any business similar to that of the company
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Entering into Pp, JVs or other arrangements
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Investing shares of other company having similar objectives
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Promoting other companies and helping them financially
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Using funds for political purpose
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Giving gifts, donations or contributions for charities not relating to the
objects stated in the M/A/
20
Companies Act 1956
Consequences of Ultra Vires:
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Shareholder may obtain an injunction
Directors are personally liable for diversion of funds
Shareholder can bring action against directors who are also personally
liable for breach of warranty of authority
In case company’s money is spent on acquiring some property, the
company’s right over that property must be held secure though the
company was not authorised to acquire the property
The doctrine is used for protecting the company’s interest and cannot
be used against the company’s interests.
21
Companies Act 1956
Doctrine of Indoor Management
•
M/A and A/A provides proper rules and an outsider is entitled to
assume that the provisions have been observed by the officers of the
company.
•
M/A and A/A are public documents and hence any outsider who enters
into a contract with the company has the means of ascertaining the
propriety of the contract entered into by a company –This is called
Doctrine of Constructive Notice.
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Exceptions to the rule of Doctrine of Indoor Management– Knowledge
of irregularity; No knowledge of articles; Negligence; Forgery; Nonexistent authority of the company.
22
Companies Act 1956
PROSPECTUS: Raising the Capital from Public: Public issues:
Private companies need not issue prospectus. Public Companies
shall issue Prospectus.
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Prospectus include any notice, circular, advertisement or other
document inviting deposits, shares or debentures from the public
Prospectus should be dated –date appearing in the prospectus is the
date of publication and date of issue is the date on which prospectus
first appears as an advertisement. It should be signed.
Matters to be stated in the prospectus: 1) General Information; 2)
Capital structure; 3) Terms of present issue; 4) Management and project
and 5) Management perception of risk factors
Prospectus cannot be issued unless a copy of which is registered with
the Registrar
The document issued by the Issue House will be treated as a Deemed
Prospectus
23
Companies Act 1956
Information Memorandum: (Sec 60 B as inserted by Companies
Amendment Act 2000)
• A public company may circulate an information memorandum
to the public before filing of prospectus. If subscriptions are
invited through this information memorandum, the company
is bound to file a prospectus prior to the opening of
subscription lists and the offer as RED HERRING PROSPECTUS.
• RED HERRING PROSPECTUS means a prospectus which does
not have complete particulars on the price of the shares and
the quantum of the issue.
24
Companies Act 1956
Contents of Prospectus
• General Information –Name and address of the regd office, consent
of the central government, Names of stock exchange where listing
appn is done, declaration about refund for under subscription etc….
• Capital Structure –authorised, subscribed and paid up capital, size
of the present issue, Paid up capital after the present issue, after
conversion of debenture
• Terms of the present issue
• Particulars of the present issue
• Company Management and projects
• Particulars re: related managements
• Outstanding litigations
• Management perception of risk factors
25
Companies Act 1956
Contents of Prospectus (contd..)
• Consent of Directors, Auditors, Advocates, Managers to the
issue, Registrar of issue, Bankers to the Company, Bankers to
the issue and experts
• Names and address of the company secretary, legal advisors,
lead managers, auditors, bankers, bankers to the issue,
brokers to the issue
• Financial Information—accountants report, auditors report,
terms and conditions of secured loans
• Statutory and other information
• Statement by experts
26
Companies Act 1956
Raising the Capital from Public: Public issues:
Golden Rule for framing of Prospectus: Every fact must be stated with strict
and scrupulous accuracy.
Civil Liability for misstatement in Prospectus available against
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Any director at the time of issue
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Any person who authorised himself to be put in the prospectus as a
director—immediately or after an interval of time
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A promoter of the company
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Every person (including an expert) who has authorised the issue of
prospectus.
Affected person can rescind the contract of purchase of shares or claim
damages
27
Companies Act 1956
Transfer and transmission of shares
• Shares of a company are movables and hence transferable
• Shares of a private company are not transferable
• Shares of a public company are transferable
• Articles of Association prescribes the manner in which
transfer shall take place
• Physical transfer of shares shall be through executing transfer
deed
• Blank Transfer is also permitted without filling the name of
the transferee
• Electronic transfer is through demat accounts
• Transfer by a legal representative of a deceased shareholder is
valid
28
Companies Act 1956
Transfer and transmission of shares
• Sec 109 A and 109 B introduced by Companies Amendment
Act 1999. 109A deals with Nomination and 109B deals with
Transmission of Shares
• Nomination by single or joint shareholders shall be in favour
of a single person. A minor can also be a nominee
• Any person by virtue of nomination as per 109A is entitled to
–a) get himself registered as the holder of shares or
debentures or b) to make transfer of shares in favour of the
nominee as if the deceased would have transferred them.
29
Indian Companies Act 1956
Share Certificate and Share warrant
Share Certificate:
• Share certificate shall be under the seal of the company and
shall specify the shares to which it relates, the amount paid
up and the name of the holder.
• It shall be signed by at least 2 directors and the secretary
• Time limit for issue of share certificate—3 months of the
allotment and 2 months in case of transfer
• Shareholding can be in demat form in which a statement of
holding is given to the shareholder
• Share Certificate provides a prima facie evidence
• Estoppel as to the title (cannot dispute the name of the
shareholder once registered) and Estoppel as to payment
30
Indian Companies Act 1956
Share Certificate and Share warrant
Share Warrant
• Share Warrant is a document issued by a public company stating that its
bearer is entitled to the shares specified therein. It is transferable b y
mere delivery and is a perfect substitute for Share certificate.
• Articles should contain a provision of issue of share warrant and the
permission of the Central Government should have been obtained.
• Public Company can issue share warrants by converting its fully paid up
shares
• Advantage is that the shares can be transferred by mere delivery of the
warrant and need not be registered with the company
• Holder of a share warrant is not a member of the company unless
specified in the Articles.
• Share warrant is not reckoned for qualifying shares of a director
• Share warrant holder cannot present a petition for winding up of a
company
• However with DEMAT, share warrants may not be necessary
31
Indian Companies Act 1956
Membership of companies (page 69 of N D Kapoor)
• Member and Shareholder are synonymous in case of
companies limited by Shares. Companies limited by
guarantees having share capital and an unlimited company
having shares
• In case of companies limited by Guarantees not having shares,
member is not a shareholder
• A registered shareholder is always a member but a member
may not be a shareholder
• A holder of share warrant is a shareholder but not a member
• A legal representative is not a member until he applies for
registration. However, he is a shareholder though his name
does not appear in the register of members
32
Indian Companies Act 1956
Membership of companies (contd..)
• Every person competent to contract can become a member
• Minor is not competent to become a member. However, he
can be represented by the guardian (company law board)
• An insolvent can be a member and is entitled to vote despite
his shares are being held by the official assignee or receiver
• A partnership firm can be a member in the individual names
of the partners jointly.
• A company can be a member of another company.
• Membership can be by a)subscription; b) application and
registration; c) being a beneficial owner; d) by qualification
shares.
33
Indian Companies Act 1956
Meetings: ( p149 onwards N D Kapoor);
• General Meetings:a) Statutory Meetings
b) Annual General Meetings
c) Extraordinary Meetings
• Class Meetings:
a) Meetings of different classes of shareholders and debenture
holders—during the lifetime of the company and at the time
of winding up of the company
• Meetings of Directors
34
Indian Companies Act 1956
Statutory Meetings:
• General Meeting of Members shall be held one month after the
commencement of business but within six months from the date on which
the company is entitled to commence business.
• This is the first meeting of a shareholders of a public company and is held
only once in the lifetime of the company
• Board of Directors shall forward a report (called statutory report) to all the
members 21 before the meeting date.
• Notice of the meeting shall state that the meeting is a statutory meeting.
• Contents of statutory meeting: a) total shares allotted—fully paid, partly
paid; b) cash received on shares; c) receipts and payments abstract;
d)Directors and Auditors; e) Contracts; f) Underwriting contracts, g)Calls in
arrears; h)Commission and Brokerage
• Statutory Report shall be certified by at least two directors, one of whom
shall be the MD (if there in one)
• A copy of the report to be sent to ROC
35
Indian Companies Act 1956
Annual General Meetings
• AGM shall be held every year with intervals not exceeding 15 months
• ROC may permit extension of 3 months—not applicable to the first AGM
• Notice shall specify that the meeting is an AGM
• First AGM can be held within 18 months.
• 21 days’ notice in writing (electronic mode welcome) duly indicating all
particulars like date, time, venue, agenda etc
• AGM shall be held during business hours on a working day at the Regd
office or any other location in the town/city where the regd office is
located.
• Shareholders can vote and exercise control over the affairs of the
company. Confront the directors, discuss and review the working of the
company. Audited accounts are presented for consideration of
shareholders. Dividends are declared. Auditors are appointed.
• If a meeting is not held, any member can write to the Company Law Board
and cause the meeting to be held.
36
Indian Companies Act 1956
Extra Ordinary General meetings
• Statutory meetings and AGMs are called ordinary meetings. A
meeting other than these is called Extra Ordinary General
meeting
• Extra ordinary General Meeting is called to transact some
special or urgent business which cannot be postponed till the
next AGM.
• Directors on their own or at the request of members can call
Extra Ordinary General Meeting
• Requisitionists themselves can call the meeting when the
Directors fail to call the meeting
37
Indian Companies Act 1956
• Directors on their own call for EGM for: a)transacting any
special business; b)Issue of Right Shares or c)Increase in the
remuneration of MD, whole time director
• When the Directors call the EGM on the requisition such
Requisition shall set out the matters for consideration
• On members’ requisition: Purpose of EGM a)Shareholders’
right to requisition the meeting; b)It shall be deposited with
the Regd office of the company; c) Member need not
disclose the reasons for the resolutions to be proposed at the
meeting.
• Company Law Board (by its powers)where it is impracticable
to hold the meetings, CLB can call an EGM on its own, or on
the directors’ application or on any member’s application
38
Indian Companies Act 1956
Requisites of a valid meeting:
• Proper Authority
• Notice of the meeting—sufficient time period and contents
• Ordinary business:-a) Considering accounts and audit; b) Dividend declaration;
c) appointment of directors in place of those retiring; and d) appointment of
auditors and fixing their remuneration
• Special Business:- a)Removal of a director; b) Issue of Rights/Bonus Shares;
and c) Election of a person (other than a retiring director) as a director
• Quorum: generally fixed by Articles: a) 5 members in a public company and 2
in a private company; b)Meeting can be adjourned if quorum not there; c)
adjourned meeting can be held without quorum; d) Quorum need not be
there throughout but shall be there at the time of transacting the business.
• Presiding officer (chairman) shall be elected from among the members
present
• Minutes of proceedings (minutes book with proper numbering of pages)—
evidentiary value
• Voting can be by show of hands, taking a poll and/or through proxy
39
Indian Companies Act 1956
Resolutions:
• Ordinary Resolution: passed at the General Meeting by a
simple majority
• Unless the Companies Act or M/A expressly require a special
resolution, any matter can be taken up through an ordinary
resolution.
• a) Rectification of name or adoption of a new name of the
company; b) issue of shares at a discount; c) Alteration of
share capital; d)Reissue of redeemed debentures; e) adoption
of statutory report ; f) passing annual accounts and Bal sheet;
g) appointment of auditors and fixing remuneration; h)
appointment of first directors; i) appointment of whole time
MD; k)appointment of sole selling agents etc
40
Indian Companies Act 1956
Resolutions:
Special Resolution:
----Intention to be specified --Notice --Subject matter of the
special resolution, nature & concern /or interest of every
director/manager--A copy of the resolution to be filed with
ROC within 30days--Voting by ¾ to protect the minority
interests
Purpose of Special Resolution: a) Alteration of M/A re; change of
the regd office from one State to another b) Alteration of
A/A; c) Reduction of Share Capital; and many other items
where it cannot wait till the AGM or certain activities
requiring Special Resolution as per Law. ( Refer Text for more
points)
41
Indian Companies Act 1956
Directors appointment, powers, duties and liabilities, Accounts and
Audit
Appointment of Directors:
• First Directors: --Articles usually mention the First Directors, their
number, their names; If Articles are silent, then subscribers to the
M/A shall in writing determine the names --If both the above are
not carried out, then subscribers to the M/A who are individuals
become the First directors
• Appointment of Directors by the company: Shareholders in the
AGM. At least 2/3rds retire by rotation every year. Vacancies caused
by retiring directors will be filled by the same retiring directors or
other persons. However, 1/3 of the rotational directors shall retire.
Director who has been longest in office since last appointment shall
be the first to retire. Vacancy may remain unfilled by a resolution. In
the absence of such resolution, retiring director is deemed to have
been re-appointed.
42
Indian Companies Act 1956
Appointment of Directors:
• Appointment of Directors by directors: Existing directors may
appoint directors as additional directors or in a casual vacancy ( a
director vacating his office before his term) or as alternate director (
appointment by the board where an existing director is absent for
at least 3 months)
• Appointment of Directors by Third Parties: Articles may allow
Debenture holders or other creditors (bankers/financiers). The
number shall not exceed 1/3 of the total number. These directors
are not liable to retire by rotation
• Appointment of Directors by proportional representation: Articles
may prescribe appointment of 2/3rds on proportional
representation basis for 3 years and casual vacancies being filled up.
• Appointment of Directors by Central Government: Central
Government appoints Directors for a period of 3 years on the
advice of Company Law Board ( larger interests)
43
Indian Companies Act 1956
POWERS OF DIRECTORS:
• General Powers-co-extensive with those of the company.—Shall not
do any act which is to be done in a General meeting—General
powers are subject to the Companies Act or in the M/A or A/A or in
any regulations made in the General meeting. However, Regulations
made in a General Meeting have prospective effect ( not
retrospective). –will not affect directors actions taken earlier to the
passing of regulations in the General meeting.
• Powers at the Board Meeting: Through Board Resolutions, the
following powers available:--make calls on shareholders; issue
debentures; borrow money other than debentures; invest the
company funds; make loans. Powers to borrow, invest the funds
and make loans can be delegated to a committee or to manager or
principal officers of the company.
44
Indian Companies Act 1956
POWERS OF DIRECTORS:
• Powers with the approval of the company in General meeting:--Sell,
Lease, dispose of whole or substantially whole of the undertaking
(amalgamation scheme)—Remit or give time for repayment of any
debt due to the company by a director (excepting renewal or
continuance of a bank loan to a director)—investing the
compensation received in case of compulsory acquisition of any
undertaking or property of the company—to borrow moneys
subject to certain conditions—to contribute to charitable and other
funds
• Powers to make political contributions:--Out of profits only—Max
5% of the Net Profits—board resolution necessary—These power is
not available to the directors of government companies and
companies which are less than 3 years in existence.
45
Indian Companies Act 1956
Duties of Directors:
• Fiduciary Duties--Honest, bona fide duties for the company as
a whole—Not to place themselves in situations conflicting the
company interests and their personal interests—(fiduciary
duties owed to the company not to the shareholders)
• Duties of Care, Skill and Diligence—Setting up standards,
Delegation of powers between directors/other officers—
general usages and practices –whether directors work
gratuitously or for remuneration
• Other duties: --to attend board meetings—not to delegate his
functions except to the extent authorised by the Act or the
constitution of the company and to disclose his interest.
46
Indian Companies Act 1956
Liabilities of directors:
Liability to Third parties: a) Issue of prospectus, particulars required by
the Companies Act missing in prospectus, or material
misrepresentation; b) Personal liability in case of –failure to repay
the application money-- irregular allotment--faiilure to repay
application money if no application to the stock exchange is made
or stock exchange refuses to list the securities –failure of the
company to pay a Bill of Exchange, hundi or Promissory Note or
cheque
However, directors are not personally liable on contracts entered into
on behalf of the company (as agents in normal course of business).
Major exception to this rule—if a director signs a negotiable
instruments without company seal, it is deemed to attract a
personal liability
47
Indian Companies Act 1956
Liability to the Company
a)Personally –jointly and severally liable for ultra vires acts ( not
necessary to prove fraud) eg dividends paid out of capital or
involve funds in ultra vires transactions;
b)Personally liable for NEGLIGENCE.(not exercising proper care
and diligence in duties
c) Breach of Trust
d) Misfeasance (wilful misconduct)
48
Indian companies Act 1956
Liability for breach of statutory duties: Maintenance of proper
accounts; filing of returns or observing certain statutory
formalities
Liability for acts of co-directors: Not liable for the acts of codirectors unless he himself is a party or has knowledge of the
acts of co-directors
Validity of acts of directors: Acts of Directors are valid even if at a
later date his appointment is discovered to be invalid.
49
Indian Companies Act 1956
Accounts and Audit:
Regd Office to maintain properly the following books of
accounts:
• Receipts and disbursements of money(particulars thereto)
• Purchases and Sales of goods and services
• Assets and Liabilities
• Mfg, processing, Mining etc, utilisation of materials or labour
or other items of cost as prescribed by the Central
Government
• The above books should be subjected to audit. Books to give a
true and fair view of the affairs of the company
• System of accounting adopted to be mentioned ( eg
mercantile, accrual system etc)
50
Indian Companies Act 1956
• Normally, books are to be kept at the regd office.
Board of Directors may permit them to be kept at other
places with due information to the ROC within 7 days.
• Companies having foreign offices(branches)—account
books may be kept in those offices.
• Books of accounts (with respective vouchers) to be
maintained for a minimum period of 8 years. In case of
litigations, such records to be kept for a longer time.
(sometmes, for 21 years from the closure)
• Registrar of Companies or SEBI authorities or any other
authority may inspect the books maintained without
any prior notice.
51
Indian Companies Act 1956
Statutory Books: In addition, certain books to be maintained to
safeguard shareholders’ interest (statutory books).
• Register of investments not held in company’s name( open to
inspection by shareholders and debenture holders)
• Register of Charges (open to all)
• Register of Members (including index of members)-- Open to all
• Register of Debenture holders (incl index)—open to all
• Foreign Register of Members
• Minute books
• Books of Account and annual Accounts
• Register of Contracts, and companies and firms in which directors
are interested ( open to members)
• Register of Directors, MD, Manager and Secretary)--open to all
• Register of Director’s shareholdings
• Reg of loans made, guarantees given or securities provided to
companies under the same management.
52
Indian Companies Act 1956
• Annual Accounts and Balance Sheet—P & L Account, Balance
Sheet, Director’s Report (board of director’s report), Director’s
responsibility statement
• Form and contents shall be as prescribed by the Companies
Act. Certain sectors like Banking, Insurance, Electricity or
Railways will have the formats governing such companies.
• Compliance with Accounting Standards of ICAI. (Recently
allignment with IFRS is also required )
• Three copies of the Balance Sheet, Profit and Loss Account
along with other reports and documents shall be filed with
the ROC within 30 days from the date of the AGM.
53
Indian Companies Act
Audit
• Companies Act provides for appointment of an auditor.
• Auditors may be appointed by Board Meeting or in a general
meeting or by the Central Government or any other appropriate
authority as permitted by relevant law.
• Auditor is an independent agency which safeguard the
shareholders’ interests—things like unbusiness like manner,
mislaying funds or misappropriation shall be found out and
reported
• Companies having paid up capital of Rs 5crores and above shall
constitute a audit committee (from the Board ).Minimum number
should be 3. 2/3 of the total number shall be directors other than
managing or whole time directors
• Auditors appointed shall have the Chartered Accountant
Qualification of ICAI.
• Auditors are normally re-appointed except where it is provided in
any other law.
54
Indian Companies Act 1956
WINDING UP OF COMPANIES:
• Winding up or Liquidation of a Company means the company
is dissolved.
• Assets are disposed off and the debts are paid off out of the
realised assets or from contributions and the surplus, if any
distributed among the members.
• The priority in which the claims are disposed off is important
• The property is administered in the hands of and
administrator called the liquidator who will undertake the
process of liquidation
55
Indian Companies Act
Modes of Winding Up:
• Compulsory winding up by the Court
• Voluntary Winding up; a) by members; b) by creditors
• Winding up subject to supervision of the court
Court Winding up:
• Special Resolution of the company. Voluntary winding up is cheaper
than this
• Default in delivering the statutory report to the Registrar or in
holding the meeting—ROC or a contributory may move a petition
after 14 days from the date of the statutory meeting date. Court
may give one more opportunity by directing the company to submit
all the pending statements and comply with all the pending
activities and directing the persons concerned to bear all the costs.
In such cases, winding up does not happen.
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Indian Companies Act 1956
Court Winding up: Grounds on which such petition can be filed:
• Illegal or ultra vires acts
• Frauds on the minority, oppression of the minority
• Company’s act inconsistent with the Articles
• Ordinary resolution passed where special resolution is
required
• Infringement of rights of individual members
• Breach of duty
• Mismanagement of the company
57
Company Law -Case Laws
1) Salomon v Salomon & Co Ltd (1897)—Separate legality entity
• S sold his boots business to a newly formed company for 30000
pounds.. His wife, one daughter and four sons took up one share of
1 pound each. S took 23000 pounds shares of 1 pound each and
10000 pounds debentures in the company. Debentures gave S a
charge over the assets of the Company as the consideration for
transfer of the business. The company was wound up. Its assets
were worth 6000 pounds and its liabilities were 17000 pounds of
which 10000 were due to secured debentures and 7000 due to
unsecured creditors. Unsecured creditors claimed that S and the
company were one and the same person and the company was a
mere agent of S and that they should be preferred in payment over
S.
• judgement: Company, was, in the eyes of law a separate person
independent from S and was not his agent. S, though virtually held
all the shares in the company, was also a secured creditor and was
entitled to repayment in priority to the unsecured creditors
58
Company Law -Case Law
2)Macaura v Northern assurance Co. Ltd. (Corporate Veil)
• Macaura v Northern Assurance Co Ltd [1925] AC 619
• Macaura v Northern Assurance Co Ltd Court House of Lords Citation(s) [1925] AC
619 Judge(s) sitting Lord Sumner, Lord Buckmaster, Wrenbury, Atkinson and
Phillimore concurred.
• Mr Macaura owned the Killymoon estate in County Tyrone, Northern Ireland. He
sold the timber there to Irish Canadian Sawmills Ltd for 42,000 fully paid up £1
shares, making him the whole owner (with nominees). Mr Macaura was also an
unsecured creditor for £19,000. He got insurance policies - but in his own name,
not the company's - with Northern Assurance covering for fire. Two weeks later,
there was a fire. Northern Assurance refused to pay up because the timber was
owned by the company, and that because the company was a separate legal entity,
it did not need to pay Mr Macaura any money.
• JUDGEMENT: The House of Lords held insurers were not liable on the contract,
since the timber that perished in the fire did not belong to Mr Macaura, who held
the insurance policy. Lord Sumner said, “It was not his. It belonged to the Irish
Canadian Sawmills Ltd, of Skibbereen, co Cork… He stood in no ‘legal or equitable
relation to’ the timber at all… His relation was to the company, not to its goods,
and after the fire he was directly prejudiced by the paucity of the company’s
assets, not by the fire…”
59
Company Law—Case Law
3)The Ashbury Railway carriage & Iron Co. v Riche
Ashbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653
is a UK company law case, which concerned the objects clause of a
company.
Its importance has been diminished as a result of the Companies Act
2006 s 31, which allows for unlimited objects for which a company
may be run.
Incorporated under the Companies Act,1869, the Ashbury Railway
Carriage and Iron Company Ltd’s memorandum, clause 3, said its
objects were ‘to make and sell, or lend on hire, railway-carriages…’
and clause 4 said activities beyond needed a special resolution. But
the company agreed to give Riche and his brother a loan to build a
railway in Belgium. Later, the company repudiated the agreement.
Riche sued, and the company pleaded the action was ultra vires.
60
Company Law- Case Law
3)The Ashbury Railway carriage & Iron Co. v Riche (contd..)
JUDGEMENT
• The House of Lords, agreeing with the three dissentient judges in
the Exchequer Chamber, pronounced the effect of the Companies
Act to be the opposite of that indicated by Mr Justice Blackburn. It
held that if a company pursues objects beyond the scope of the
memorandum of association, the company's actions are ultra vires.
Lord Cairns LC said,
• “It was the intention of the legislature, not implied, but actually
expressed, that the corporations, should not enter, having regard to
this memorandum of association, into a contract of this description.
The contract in my judgment could not have been ratified by the
unanimous assent of the whole corporation.”
61
Company Law-Case Law
4)Royal British Bank v Turquant
Royal British Bank v Turquand (1856) 6 E&B 327 is a UK company law
case that held people transacting with companies are entitled to
assume that internal company rules are complied with, even if they
are not. This "indoor management rule" or the "Rule in Turquand's
Case" is applicable in most of the common law world
Mr Turquand was the official manager (liquidator) of the insolvent
‘Cameron’s Coalbrook Steam, Coal, and Swansea and London
Railway Company’. It was incorporated under the Joint Stock
Companies Act 1844. The company had given a bond for £2000 to
the Royal British Bank, which secured the company’s drawings on
its current account. The bond was under the company’s seal, signed
by two directors and the secretary. When the company was sued, it
alleged that under its registered deed of settlement (the articles of
association), directors only had power to borrow what had been
authorised by a company resolution. A resolution had been passed
but not specifying how much the directors could borrow.
62
Company Law- Case Law
JUDGEMENT
• Sir John Jervis CJ, for the Court of Exchequer Chamber “the
Royal British Bank could enforce the terms of the bond. He
said the bank was deemed to be aware that the directors
could borrow only up to the amount resolutions allowed.
Articles of association were registered in Companies House,
so there was constructive notice. But the bank could not be
deemed to know about which ordinary resolutions passed,
because these were not registrable. The bond was valid,
because there was no requirement to look into the company’s
internal workings. This is the ‘indoor management rule’, that
the company’s indoor affairs are the company’s problem.
63
Company Law-Case Law
5)A. V Mohan rao and another v M Kishan Rao, 2002 AIR(SC)2653
•
•
•
•
•
•
Supreme Court of India
A.V. Mohan Rao & Anr vs M.Kishan Rao And Anr on 16 July, 2002
Author: D.P. Mohapatra
Bench: D.P.Mohapatra, K.G.Balakrishnan.
CASE NO.: Appeal (crl.) 688 of 2002
PETITIONER: A.V. MOHAN RAO & ANR. Vs. RESPONDENT: M.KISHAN
RAO AND ANR.
• DATE OF JUDGMENT: 16/07/2002
• BENCH:D.P.MOHAPATRA, K.G.BALAKRISHNAN.
• JUDGMENT: D.P.Mohapatra,J. Leave granted.
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Company Law-Case Law
5)A. V Mohan rao and another v M Kishan Rao, 2002 (CONTD.)
This appeal filed by the accused persons is directed against the order dated
1.3.2000 of the High Court of Andhra Pradesh in Criminal Petition
No.3052/99 declining to grant the prayer of the appellants for quashing the
proceedings in CC No.24/99 on the file of the Court of Sub-Judge, Economic
Offences at Hyderabad. The proceeding was instituted on the complaint
petition filed by respondent No.1. The appellants and the respondent No.1
are stated to be Directors of a Company- M/s Spectrum Power Generation
Limited (hereinafter referred to as "the Power Company") incorporated
under the Indian Companies Act, 1956 (for short 'the Act'), having its
registered office at Secundrabad, in the State of Andhra Pradesh.
• Business Law Case Law A V Mohan Rao and
another.docx
• ..\Business Law Case Law A V Mohan Rao and
another.docx
65
Indian Companies Act 1956
• Business Law Companies Act
amendments.docx
• ..\Business Law Companies Act
amendments.docx
66