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Essential Rules of Interpretation of Statutes for company secretaries A presentation by Dr K R Chandratre 1.

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1 Essential Rules of Interpretation of Statutes for company secretaries A presentation by Dr K R Chandratre 1

2 To be a company secretary, you have to be able to read and interpret statutes, rules, regulations, etc correctly and effectively, and advise your employer or client, who look to you for advice for their problems. A company secretary can advise their clients effectively and correctly on statutes only if they have sound knowledge of the principles or rules of interpretation of statutes. This will enable you to enhance your legal acumen, your status and multiply your clientele; or else you will lag behind and can’t gain true recognition to our profession. 2

3 Statute Law It is the body of law contained in an Act of Parliament (statute) is a document that sets out legal rules and has (normally) been passed by both Houses of Parliament in the form of a Bill and assented to by the President of India a Bill becomes an Act. 3

4 Delegated legislation (subordinate legislation) It is the law made in exercise of the powers conferred on a government or other authority by an Act of Parliament (an enabling statute or parent Act). The bulk of delegated legislation is governmental, consisting mainly of orders, regulations, rules, directions, etc. Every statute contains a provision conferring powers on the government or other statutory authorities to make rules, regulations, forms, etc (such as s. 469 of Cos Act 2013 or s. 642 of Cos Act 1956). 4

5 Rules, Regulations, etc made under a Statute have the same legal status and force as the statute made by Parliament. Notification published in the Official Gazette either promulgating rules, regulations, forms, etc or amending them but not circulars issued by the government have the same legal status. Circulars, press notes, instructions, clarifications, etc issued by the government constitute only views of the government on statutory provisions and may be taken help of to understand meaning of a statutory provision but they are not mandatory and cannot have a bearing on interpretation of a statute. 5

6 For example, the Supreme Court (SC) said in one case, that MCA’s Circular of 6 September 1994, advising companies that bonus shares should not be issued out of revaluation reserve cannot have any mandatory effect against the law which does not prevent issue of bonus shares out of revaluation reserve. These Circulars are merely advisory in character.

7 Case Law (also known as precedential law, decisional law or jurisprudence) It is the law established by judicial decisions in particular cases, instead of by legislative action or the law as established by the outcome of former cases. It is the body of judge-made law and legal decisions that interprets prior case law, statutes and other legal authority. It is the source for interpretation and understanding of various facets of statute law. It helps to develop an insight and enrich knowledge of law. The courts interpret law and unfold Legislative intent by applying principles of statutory interpretation. 7

8 Object of Interpretation To ascertain what is intended by the words of a statute. The primary object of the interpretation of statutes is to discover the true intention of the Legislature; and where the intention can be indubitably ascertained the courts are bound to give effect to it regardless of their opinion about its wisdom or folly. 8

9 Process of Interpretation (1) Read the relevant provision carefully and try to unfold meaning of every word and the whole provision. Focus on the language of the provision. (2) If any word used in the provision is defined either in the section itself or in the definitions section, apply it; if it is not defined, find out its meaning from a dictionary. (3) Try to find out if a word used is defined in some other statute and take aid of such definition to understand its meaning in the context of the provision you are interpretation. 9

10 (4) Don’t add or deduct any word of your own or rewrite any word to suit your case. Don’t mix into the language of the statutory provision anything like ethics, morals, governance, equity; or your emotions or sentiments and not even views expressed in the circulars or press notes. (5) If there are any standard phrases or expressions used in the provision, which are ordinarily used in legislative drafting (such as Notwithstanding anything contained; Provided that; Save as otherwise provided; Without prejudice to, etc; try to ascertain the effect of such phrase or expression in relation to any other provision(s) of the Act. 10

11 (6) If there are two provisions on the same subject and they apparently conflict with one another, try to find out of them which one is special and which one is general. (7) If a word is ambiguous and can lead to two meanings, try to find out the intention or purpose of the provision from legislative background, case law, etc in order to decide whether interpretation you are trying to place on it is consistent with such intention or purpose. (8) Now, by applying various rules of interpretation in the following slides, come to a conclusion as to the correct interpretation of the provision. 11

12 THE BASIC AND PRIMARY RULE OF INTERPRETATION - THE GOLDEN RULE The primary rule of interpretation (which is called ‘literal rule’) is the literal interpretation: to interpret a statutory provision literally and grammatically giving the words their ordinary and natural meaning. If a word used in a statutory provision is not defined in the statute, it must be given its ordinary, literal meaning in the context of the relevant provision. 12

13 It was held that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only,then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object policy of the Act.

14 Thus, the cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.

15 If the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature. In other words, if the language used by the Legislature is precise and unambiguous, we have only to expound the words in their natural and ordinary sense. So, truly speaking, the only rule of interpretation is ‘literal interpretation rule’. 15

16 For example,- If a statutory provision states ‘contract for the sale, purchase or supply of any goods, material or services’, all the words - sale, purchase, goods, material, services - not defined in the statute must be interpreted according to their natural, ordinary meaning, although in the process, meanings given in other statutes may be taken help of to understand its meaning. Meaning of a word or phrase defined in any other statute may be taken help of to interpret it if it is used but not defined in another statute. 16

17 Hardship, inconvenience etc are not relevant The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex (the law is hard but it is the law), stands attracted in such a situation. It has consistently been held that, inconvenience is not a decisive factor to be considered while interpreting a statute. If the language of a statute is clear and explicit, it must receive full effect, whatever may be the consequences. 17

18 Some examples of ‘literal interpretation’ The words ‘purchase’ of immovable property do not include ‘lease’ of immovable property. The word ‘sale’ did not include lending of an article for temporary use to be returned after some time. A guarantee or security not in respect of a loan is outside the ambit of the provision which applies to a guarantee or security in connection with a loan. The words ‘contract for service’ do not apply to ‘contract of service’. 18

19 A comfort letter given by a company to a bank in respect of another company which had taken a loan from the bank, was not a guarantee. In the absence a definitions, the natural and ordinary meaning of the word ‘aircraft’ is wide enough to include a hot air balloon used for carrying passenger and ‘passenger’ includes any person who is being conveyed in an aircraft from one place to another and who is not himself contributing to the process of flying, and even for reasons of pleasure or recreation and destination is unpredictable. 19

20 READING WORDS IN AND READING WORDS OUT OF A STATUTE Adding words in, or omitting words from, a statutory provision is not permissible, as it amounts to doing something which only Legislature is permitted to do. So, no one (even courts) cannot add any words into a statute, nor can we omit any words from it; not even in the name of interpretation or policy or anything else. Otherwise everyone would do it. The intention of the legislature is required to be gathered from the language used and, therefore, a construction, which requires for its support with additional substitution of words or which results in rejection of words as meaningless has to be avoided. 20

21 Every word in a statute to be given a meaning and no word should be ignored, omitted or brushed aside, on the presumption that Parliament does nothing in vain. An interpretation which would leave without effect any part of the language of a statute will normally be rejected. Every word and expression used by the Legislature has to be given its proper and effective meaning as the legislature uses no expression without a purpose or meaning, for a statute is never supposed to use words without a meaning, and no word should be considered as redundant. 21

22 The Stamp Act in Delhi levied a fixed stamp duty on MoA and stamp duty with reference to the authorised share capital only at the time of incorporation of a company. Delhi High Courtrefused to add words and held that in the absence of express provision in the Act permitting levy of stamp duty on the increase of authorised share capital, no stamp duty was payable when a company increased its authorised share capital. 22

23 Examples: Madras HC held: The words relative of such director in cl. (b) of s. 314(1) refer to a director of the company who himself holds an office or place of profit, and not any director; that is the plain grammatical meaning of the words such director. Gujarat HC held: The words Every company … shall have a whole-time secretary, in s. 383A of Cos Act 1956 cannot be interpreted as meaning shall be in the employment ; so a company secretary need not be in the employment of a company but may be engaged on a contractual basis. 23

24 Delhi HC held: The expression monthly remuneration in s. 314, doesn’t include those payments which by virtue of their nature and practice are not made on monthly basis (like reimbursement of medical expenses, benefit of employer's contribution to PF, encashment of un-availed leave and bonus). Calcutta HC held: The phrase "office of profit" in s. 204 has to be given its ordinary and natural meaning, namely, that by virtue of the office any profit is derived. Madras HC held: Advance against salary is not a loan. Bombay HC held: A deferment of purchase price of property is not a loan although it is a debt. 24

25 INTERPRETATION OF A PROVISO A proviso is a clause in a statute, which begins with the phrase Provided that. Literally it means ‘on the condition or understanding that’. A proviso has one or more of the following three functions: (a) Exception to the main provision; (b) Condition to the main provision; (c) Additional requirement. 25

26 A proviso must be interpreted harmoniously with the section or subsection to which it is appended. A proviso qualifies the generality of the main enactment Unless the words of the proviso indicate otherwise, the proviso applies to the whole of the main part of the section or subsection under which the proviso has been inserted. For example, where the main section contained two periods, eighteen months and one year, and the proviso used the words “the period”, it was held that the proviso applied to both the period mentioned in the main section.

27 Example (Exception) Except with the consent of the Board of Directors given by a resolution at a meeting of the Board …, no company shall enter into any contract or arrangement with a related party with respect to … Provided also that nothing in this sub-section shall apply to any transactions entered into by the company in its ordinary course of business other than transactions which are not on an arm's length basis. 27

28 Example (Condition) Where a licence is revoked under sub-section (6), the Central Government may, by order, if it is satisfied that it is essential in the public interest, direct that the company be wound up under this Act or amalgamated with another company registered under this section: Provided that no such order shall be made unless the company is given a reasonable opportunity of being heard. 28

29 Example (Exception and Condition) Every company shall keep at its registered office proper books of account; Provided that the books of account may be kept at such other place in India as the Board of directors if, within seven days of the decision, the company files with the Registrar a notice in writing giving the full address of that other place. 29

30 Ejusdem generis [Things of the same kind or class rule or the consistent list rule] When a general word or phrase follows a list of specific words or phrases, the general word or phrase will be interpreted to include only items of the same type as those listed. If a list of things of a particular type concludes with a catch- all expression like or anything else, or the like, or otherwise, etcetera, et all, and others; and so forth; and so on, the general word is restricted to things of the same type or class 30

31 Examples: In the expression ‘cats, dogs, and other animals’, the general words ‘other animals’ are to be treated as confined to other domestic animals. The word ‘otherwise’ in the phrase “salary, fee, commission, perquisites, any rent-free accommodation, or otherwise”, should not be interpreted to include something which is not remuneration, such as travelling expenses. Closing down of an undertaking would not fall within the phrase ‘sell, lease or otherwise dispose of’ despite the use of the words ‘otherwise dispose of’. 31

32 PURPOSIVE INTERPRETATION Although literal rule is the primary and universal rule of interpretation of statutes when the words of a statute are clear and unambiguous, the rule of purposive interpretation is resorted to when the words in a statutory provision are unclear, vague or ambiguous and admit of more than one meaning. In this situation, to find out the true purpose or object of the provision, the court uses other (external) aids of interpretation such as historical background, report of a committee, statement of objects & reasons, debate in Parliament, the practice prevailing before the enactment, etc. 32

33 HARMONIUS INTERPRETATION OF TWO CONFLICTING PROVISIONS IN A STATUTE The provisions of a statute should be so interpreted as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. 33

34 The Court should, when it seeks to ascertain the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision in the light of the general purpose and object of the Act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, that the Court should attempt to avoid absurd consequences in any part of the statute and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result in clearly unavoidable. 34

35 Harmonious interpretation rule is used when two provisions on the same subject are in conflict and cannot be reconciled with each other on plain reading. The endeavour in such a situation is to give effect to both and not render either redundant or useless or a dead letter. So, if there appears inconsistency between two sections of the same Act, the principle of harmonious interpretation should be applied to avoid a head-on- clash; it should not be assumed that what Parliament has given with one hand, it took away with the other. 35

36 CONFLICT BETWEEN GENERAL PROVISION AND SPECIAL PROVISION Another well known rule of construction used when there are two conflicting or inconsistent provisions, one of them special and the other general, is that the special provision prevails over or overrides the general provision. They should be interpreted to avoid the conflict and harmonize them to give effect to both so that neither is rendered useless or a dead letter. Provisions of one section of a statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. 36

37 As was said by the Supreme Court, It is a cardinal rule of construction that when there are in a Statute two provisions which are in conflict with each other such that both of them cannot stand, they should, if possible, be so interpreted that effect can be given to both, and that a construction which renders either of them inoperative and useless should not be adopted except in the last resort. This a what is known as the rule of harmonious construction.

38 A classic example is, sections 185 and 186 of Companies Act While s.185 prohibits giving loans, guarantees and securities to some parties, s.186 permits it. In this situation, allowing s.186 to prevail over s.185 will make s.185 completely useless and a dead letter. So the rules of harmonious interpretation and special overrides general would help reconcile them, to say that cases covered by s.185 (which is a special provision) are excluded by s.186 (which is a general provision). 38

39 INTERPRETATION OF DEFINITIONS Definition is a statement of the meaning as of a word or phrase used in a statute. It is common to define in a statute certain words and phrases used in that statute, e.g. s. 2 of Companies Act Definitions are either restrictive or extensive. They are called ‘exhaustive definitions’ and ‘inclusive definitions’ respectively. This is indicated by the use of the words ‘means’ and ‘includes’ respectively. 39

40 There is also a definition called an ‘adoptive definition’. This type of definition adopts the definition given in one statute for another statue (‘Depository’ has the same meaning as in the Depositories Act, 1996.) There is also an ‘exclusive definition’ that excludes something from for the Act in which it is stated (‘member’, in relation to a company, does not include a bearer of a share-warrant of the company...) A majority of definitions are, however, either exhaustive or inclusive. 40

41 When the word ‘means’ is used, the definition is exhaustive or restrictive definition which means the definition does not cover anything outside the definition. When the word ‘includes’ is used the definition is an inclusive or expansive definition. When both the words are used, the definition is an exhaustive or restrictive definition. 41

42 An exhaustive definition does not cover anything other than what is stated in the definition and hence its scope is restrictive; you cannot include anything outside its scope. Unless there are compelling reasons to do so, meaning of the word or phrase in a restrictive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined. 42

43 An inclusive definition is wide enough to include anything not mentioned in the definition but which is similar to what is mentioned in it; while the term defined should retain its ordinary meaning, it should also cover things in addition to those mentioned in the definition of similar nature. For example, definition of ‘company’ only means a company registered in India under the Companies Act but definition of ‘body corporate’ includes a company as well as any entity in or outside India which is a juristic or artificial person incorporated under law and having an independent corporate personality. 43

44 But the definition using the word ‘means’ is an exhaustive definition and it cannot take in its fold anything other that what is covers. For example, we can’t bring anything beyond what the definitions of ‘company secretary’, ‘promoter’, ‘public company’, ‘private company’, ‘related party’, ‘relative’, ‘subsidiary’ state because all these definition use the ‘means’ and hence cannot be expanded beyond what they state.

45 Examples: "company" means a company incorporated under this Act or under any previous company law. "Chief Financial Officer" means a person appointed as the Chief Financial Officer of a company "body corporate" or "corporation" includes a company incorporated outside India. "document" includes summons, notice, requisition, order, declaration, form and register, whether issued, sent or kept in pursuance of this Act or under any other law for the time being in force or otherwise, maintained on paper or in electronic form. 45

46 Definition having a limited scope to specific section While definitions given in the definition section apply to the entire Act, sometimes a definition for a particular section or subsection is given in the Explanation appended to that section or subsection. These definitions apply to specific sections only. In such cases, usually the words “For the purposes of this section’ or ‘For the purposes of this subsection’ are used to indicate the limited scope of the definition. Such definitions cannot be used to interpret the same words or phrases used in other sections. 46

47 Examples: Explanation.—For the purposes of sub-section (2), the term "infrastructure projects" means the infrastructure projects specified in Schedule VI. Explanation.—For the purposes of this sub-section, "National Holiday" means and includes a day declared as National Holiday by the Central Government. 47

48 Interpretation of words not defined When a word used in a provision of Act is not defined in the Act, it should be interpreted according to its ordinary, natural meaning. If it is defined in some other statute, that definition cannot be blindly imported into the statute but such other definition can be used to understand the meaning of that word in the context of the provision of such other Act. 48

49 HEADINGS AND MARGINAL NOTES The ‘heading’ or ‘title’ prefixed to a section or a group of sections have a limited role to play in the construction of statutory provision. They may be taken as very broad and general indicators or the nature of the subject matter dealt with by the section but they do not control the meaning of the section if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions. Often, the heading of a section is at variance with the provision in the section and sometimes it is misleading. 49

50 INTERPRETATION OF ‘SHALL’ AND ‘MAY’ The standard rule is that the provision containing shall is mandatory and the provision containing may is either permissive or discretionary. In other words, shall conveys mandatory nature of the provision, while may conveys permissive or discretionary or directory nature. When a provision uses the word may, it is a permissive provision, giving a discretionary power or authority and that the provision is not mandatory and when the word shall is used the provision is considered mandatory, prohibitory or commanding a duty or obligation. 50

51 There are, however, cases where shall is used even if the nature of the provision is permissive or discretionary and vice versa. This is either due to uncertainty in the mind of the drafter of the statute or drafting mistake. In India, there is often a confusion (and also a phobia) about the use of shall; so most drafters find an easy way of using shall, leaving it to the courts to interpret the provision. There are several court decisions in which shall is held as may and vice versa. 51

52 Examples: Every company shall keep a register of members. This is mandatory. A private company which is not a subsidiary of a public company may, by its articles, provide, that the office of director shall be vacated on any grounds in addition to those specified in sub-section (1). This is permissive. The Central Government or the Registrar may, at any time, require a copy of the said register, or any part thereof. This is discretionary. 52

53 INTERPRETATION OF ‘AND’ AND ‘OR’ In ordinary usage, and is conjunctive (that connects words, phrases and clauses in a sentence) and or is disjunctive (that separates words, phrases and clauses in a sentence). Thus and connects two or more items and makes a cumulative group of them whereas or separates two or more items and makes them alternative to one another 53

54 When in a series of two or more items and is used, they are said to be cumulative. Example: "foreign company" means any company or body corporate incorporated outside India which— (a) has a place of business in India whether by itself or through an agent, physically or through electronic mode; and (b) conducts any business activity in India in any other manner. 54

55 When in a series of two or more items ‘or’ is used, they are said to be alternative to each other. Example: A company formed under sub-section (1) may be either— (a) a company limited by shares; (b) a company limited by guarantee; or (c) an unlimited company. 55

56 Interpretation of some Standard Expressions and Phrases used in Statutes 56

57 For the purposes of this section = applies only to the particular but the whole section. Example: For the purposes of this section any person in accordance with whose directions or instructions the Board of directors of a company is accustomed to act, shall be deemed to be a director of the company [s.307]. 57

58 For the purposes of this sub-section / clause = applies only to the relevant sub-section or clause and not the whole section. Example: Explanation.—For the purposes of this clause, "free reserves" means all reserves created out of the profits and share premium account but does not include reserves created out of revaluation of assets, write back of depreciation provisions and amalgamation. [s.2(29A)] 58

59 For the purposes of this Act = applies to the whole Act. Example: For the purposes of this Act, a company shall, subject to the provisions of sub-section (3), be deemed to be a subsidiary of another if, but only if … 59

60 Without prejudice to = without affecting or causing harm to, or damaging, the other provision of the Act. It seeks to protect other provision(s) of the Act which may be on the same subject. Example: The provisions of this section shall be in addition to, and without prejudice to the operation of, any other provision contained in this Act. Without prejudice to the rights conferred by sub-section (5), the Central Government or the Registrar may, at any time require a copy of the said register, or any part thereof. 60

61 When a subsection in a section contains these words, no harm should be done to the other subsection(s) mentioned and call for compliance with that/those subsection(s) also. Example: (2A) Without prejudice to the provisions of sub-section (1) and sub-section (2) a company having a share capital, whether or not it has issued a prospectus inviting the public to subscribe for its shares, shall not at any time commence any business 61

62 Nothing in this section shall be taken to prejudice the operation of = seeks to avoid conflict by retaining the requirement under any other law. Example: Nothing in this section shall be taken to prejudice the operation of any rule of law restricting a director of a company from having any concern or interest in any contracts or arrangements with the company [s 299(5)]. 62

63 Nothing (contained) in this section shall apply = if a sub-section of a section contains this, it excludes the applicability of the whole section. Example: Nothing in this section shall apply to any contract or arrangement entered into or to be entered into between two companies where any of the directors of the one company or two or more of them together holds or hold not more than two per cent of the paid- up share capital in the other company. [s 299(6)] 63

64 Notwithstanding anything contained in this Act (Non-obstante clause) The Latin phrase ‘non obstante’ means ‘notwithstanding’, which means in spite of; in spite of the fact that; without being opposed or prevented by; although; regardless of; irrespective of. It seeks to give the provision an overriding effect as against any contrary provision that may be found either in the same enactment or (if the words so suggest) in some other statute; it is used to avoid the operation and effect of all contrary provisions. 64

65 Subject to the provisions of section … = on the condition of the provisions of the specified section being observed or complied with. This phrase is used when, while complying with one statutory provision, another provision relating to the subject- matter also must be complied with. Example: Subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed by the company and by each member, and contained covenants on its and his part to observe all the provisions of the memorandum and of the articles. 65

66 Save as otherwise provided in this Act = In legal context, save means except, but, other than; to preserve something from harm, injury, loss, etc. This phrase seeks to keep applicability of any other provision on the same subject unaffected. Example: Save as otherwise expressly provided in the Act— (a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, …... 66

67 For a detailed study on this subject, and extensive case law, refer to the book- ESSENTIAL RULES OF NTERPRETATION OF STATUTES for Company Secretaries By Dr K R Chandratre published by the ICSI 67

68 Companies Act 2013 Chapters XII & XIII [comprising sections 173 to 205]

69 Meetings of Board [S. 173] First board meeting must be held within 30 days after incorporation. 4 board meetings in a year with interval of maximum 120 days between two consecutive meetings. CG may exempt a class of companies. OPC, Small Company and Dormant Company can hold only one board meeting in each half year and with a gap of not 90 days between two meetings. But OPC having only one director need not comply with this requirement. [S. 173(5)]

70 Directors may participate in board meetings either in person or through video-conferencing or other audio- visual means, if it is capable of recording and recognising the participation of the directors and recording and storing the proceedings of meetings along with date and time and prescribed by CG. [S. 173(2)] Chapter XII Rules: Rule 3 details procedural requirements as regards participation in board meetings through videoconference.

71 The matters specified in Rule 4 of Rules under Ch. XIII can’t be passed at a meeting held through videoconference: (i) approval of the annual financial statements; (ii) approval of the Board’s report; (iii) approval of the prospectus; (iv) audit committee meeting for consideration of accounts; (v) approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover.

72 Notice of board meeting [S. 173] 7 days’ notice in writing to every director at his registered address (in or outside India) must be given for every board meeting. A notice may be sent by hand delivery or by post or by electronic means. A shorter notice may be given to transact urgent business, but at least one independent director, if any, must be present at the meeting. Ratification by at least one independent director will be valid.

73 Quorum for Board meetings [S. 174] One-third of total strength of the board or two, whichever is higher, will be quorum for board meetings. Participation of the directors by video conferencing or by other audio visual means shall also be counted for quorum. Any fraction in the one-third must be rounded off as one. Quorum must be of disinterested directors. so interested directors cannot participate or vote.

74 If the number of interested directors exceeds or is equal to two-thirds of the total strength of the Board, the number of directors who are not interested directors and present at the meeting, being not less than two, shall be the quorum. [S. 174(3)] Thus, at least two disinterested directors must be present when the number of interested directors is equal to two- thirds or more.

75 Thus, if a situation of only one disinterested director arises (e.g. when board considers resolution for remuneration of non-executive directors), divide the non- executive directors in two groups and pass two separate resolutions alternately so that on both occasions there will be sufficient disinterested quorum (e.g. if a company has eight non-executive directors and one executive director, place two separate resolutions, each for four non-executive directors instead of one resolution for all eight directors)

76 The continuing directors may act notwithstanding any vacancy in the Board; but, if and so long as their number is reduced below the quorum fixed by the Act for a meeting of the Board, the continuing directors or director may act for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company and for no other purpose. -- S. 174(2)

77 This means, if the number of directors reduces below the minimum number of directors required by the Act under s. 149, the continuing directors (which means at least two) may act despite any vacancy in the Board. But if the number of directors reduces only below the quorum fixed by the Act, one or more continuing directors may act only for increasing the number of directors up to the quorum, or for convening a general meeting.

78 Circular Resolution [S. 175] Directors can pass any resolution without a meeting except those which the Act specifically requires to be passed only at meetings. A circular resolution must be sent to all the directors at their addresses registered with the company in India, by hand delivery or by post or by courier, or by or fax [Rule 5]. A director who stays outside India must provide address in India to which circular resolution will be sent.

79 But Articles of a company may provide that circular resolutions must be sent to the foreign directors at their overseas address. A circular resolution will be passed if it is approved by a majority of the directors, who are entitled to vote on the resolution. This means, for passing, a circular resolution will need approval of a majority of directors (excluding interested directors) whether they are in India or out of India.

80 If one-third or more of the directors require that the resolution circulated must be placed before the board at a meeting, the resolution cannot be passed by circulation. Every circular resolution must be noted at a subsequent board meeting and made part of the minutes of such meeting. These provisions also apply to circular resolution to be passed by a committee of the board.

81 Committees of the Board [Rule 6] The following companies must have Audit Committee and Nomination & Remuneration Committee of Board: A listed company; A public company with a paid up capital of Rs. 10 cr or crore; A public company having turnover of Rs. 100 cr or more; A public company, having in aggregate, outstanding loans or borrowings or debentures or deposits exceeding Rs. 50 cr or more.

82 Audit Committee (AC) [S. 177] AC must have minimum three directors as its members with a majority of Independent Directors (ID). A majority of members of AC (including its Chairperson) shall be persons with ability to read and understand financial statements. Existing ACs must be reconstituted within a year after commencement of the new Act.

83 Functions of AC are as specified in s. 177(4) and any other function delegated by the Board. The auditors and KMP shall have right to be heard in the AC meeting when it considers the auditor’s report; but they shall not have the right to vote. Board’s Report must disclose composition of AC and recommendations of AC not accepted by the board along with reasons.

84 Nomination and Remuneration Committee (NRC) and Stakeholders Relationship Committee (ARC) -[S. 178] NRC must consist of three or more non-executive directors of whom at least 50% must be IDs: The chairperson of the company (whether executive or non-executive) may be appointed as a member of the NRC but not as the chairperson.

85 The NRC must identify persons who are qualified to become directors and who may be appointed in senior management in accordance with the criteria laid down, recommend to the Board their appointment and removal and shall carry out evaluation of every director's performance. [S. 178(2)] The NRC shall formulate the criteria for determining qualifications, positive attributes and independence of a director and recommend to the Board a policy, relating to the remuneration for the directors, key managerial personnel and other employees. [S. 178(3)]

86 Powers of Board [S. 179] The Board of Directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorised to exercise and do. [S. 179(1) This provision, like s. 291 of the 1956 Act, gives the Board supremacy for powers of management of affairs of the company (subject to provisions of the Act and shareholders’ approval where required under the Act).

87 The Board must exercise 19 kinds of powers mentioned in sub- s. (3) of S. 179 and Rule 8 by means of resolutions passed at meetings of the Board and not by circular resolutions. But these powers can be taken also at board meetings held by video-conference. Only following powers can be delegated by the Board:  to borrow monies;  to invest the funds of the company;  to grant loans or give guarantee/provide security for loans

88 The requirement that all these decisions should be taken only at board meetings and passed by circular resolution is too cumbersome for fast decision- making. Section 175 contains sufficient safeguard to facilitate passing of resolutions at board meeting if some directors insist on it. Every resolution passed under s. 179 must be filed under s This is unnecessary compliance work. At least private companies should be exempted from these requirements

89 Powers to be exercised by Board with shareholders’ approval [S. 180] The powers specified in s. 180 will require shareholders’ approval by special resolution.  A special resolution will be required to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking or one of the undertakings of the company, only if any of the parameters mentioned in Explanation in s. 180(1)(a) is attracted.

90 But what is proposed to be sold, leased or otherwise dispose of must be an ‘undertaking’ according to its ordinary meaning. It has been held by courts that sale of entire shareholding in a subsidiary or a wholly-owned subsidiary by the holding company does not amount to sale of undertaking.

91 Contribution to charitable funds [S. 181] Like s. 293(1)(e) of the 1956 Act, Board is authorised to contribute to bona fide charitable and other funds. Prior permission of members by ordinary resolution is required for such contribution in any financial year in excess of 5% of average net profits for the three immediately preceding financial years. But such permission can be by general authority given to the Board

92 Political Contributions [S. 182] A company (other than a government company and a company which has been in existence for less than three financial years), may contribute in any financial year up to 7.5% of its average net profits of the three immediately preceding financial years any amount directly or indirectly to any political party. Political contributions can be made on the authority of a board resolution passed at a meeting and such resolution must be deemed to be justification in law for the making and the acceptance of the contribution authorised by it.

93 Disclosure of Concern or Interest by Directors [S. 184] Two types of disclosures are required: (a) Subsection (1): disclosure of a director’s connection with bodies corporate, firms, or other association of individuals; (b) Subsection (2): disclosure of a director’s concern or interest in contracts and arrangements.

94 Under sub-s. (1), e very director must disclose his concern or interest in any company or companies or bodies corporate, firms, or other association of individuals (including shareholding): at the first meeting of the Board after his appointment; at the first meeting of the board in every financial year; and at the first board meeting held after any change in the disclosures already made.

95 The disclosure under s. 181(1) must be made:  by a notice in Form MBP 1.  at a board meeting held immediately after the date of the notice. All notices must be kept at the registered office in the custody of the company secretary or any other person authorized by the Board for the purpose, and preserved for 8 years from the end of the financial year to which they relate. [Rule 9(3)]

96 Under sub-s. (2), every director must disclose at a board meeting, his concern or interest in a contract or arrangement or proposed contract or arrangement entered into or to be entered into with- (a) a body corporate in which he holds (independently or with any other director), more than 2% shareholding of that body corporate, or is a promoter, manager, CEO of that body corporate; or (b) a firm or other entity in which, he is a partner, owner or member.

97 Section 184 does not cover interest or concern of a director when he himself or his relative is a party to the contract arrangement. This appears to be a an unintended anomaly. In any case, directors must disclose their interest when they themselves or their relatives are parties to contracts arrangements.

98 If a director becomes concerned or interested after a contract or arrangement is entered into, he must disclose his concern or interest forthwith when he becomes concerned or interested or at the first meeting of the Board held after he becomes so concerned or interested. Disclosure must be at the board meeting of the Board in which the contract or arrangement is discussed. Interested director not to participate in such meeting.

99 Interest or concern in contracts between two companies not required to be disclosed, if any of the directors of the one company or two or more of them together holds or hold not more than 2% of the paid-up share capital in the other company. Contravention to meet with punishment by imprisonment upto one year and fine of min. Rs. 50,000 and max. Rs. One lakh, besides vacation of office.

100 Loans, Guarantees, Securities [S. 185] Loans to, and guarantees and securities on behalf of, any director or any of the parties mentioned in the Explanation are prohibited, except loans to MD/WDR (i) as a part of the conditions of service extended by the company to all its employees; or (ii) pursuant to any scheme approved by the members by a special resolution.

101 The expression ‘Save as otherwise provided in this Act’ creates an impression that a loan/guarantee/security prohibited under this section can be given under s But this interpretation is not correct as it would have the result of making s.185 a dead letter. Section 185 is a special provision whereas s. 186 is a general provision; so s. 185 overrides s Therefore when both the sections apply, both must be complied with.

102 Loans, guarantees or securities by a company in the ordinary course of its business, if in respect of such loans an interest is charged at a rate not less than the bank rate declared by the Reserve Bank of India. This exemption can be availed of by banking companies and NBFC companies which can give loans. Guarantees and securities only in connection with loans attract this section. Guarantees and securities not in connection with do not attract this section; e.g. performance guarantee, guarantee for timely execution of a contract, letter of comfort no in the nature of guarantee, etc.

103 The parties covered by the Explanation: (a) any director of the lending company, or of a company which is its holding company or any partner or relative of any such director; (b) any firm in which any such director or relative is a partner; (c) any private company of which any such director is a director or member;

104 (d) any body corporate at a general meeting of which not less than twenty-five per cent of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together; or (e) any body corporate, the Board of directors, managing director or manager, whereof is accustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.

105 The section applies to public and private companies. But it doesn’t apply to loans, guarantees, securities to public companies unless cl. (e) is attracted. Clause (e) can’t apply unless there is evidence indicating instances or documents which amount to the holding company’s board or directors(s) giving directions or instructions to the subsidiary’s board, managing director or manager who is accustomed to in accordance with those directions or instructions and it cannot be presumed that a subsidiary’s board or managing director or manager who is accustomed to act in accordance with the directions or instructions of the holding company’s board or directors(s).

106 Exemptions under Rule 10 : A loan by holding company to its wholly-owned subsidiary (WOS); A guarantee or security provided by a holding company in respect of any loan taken by its WOS; and A guarantee security provided by a holding company in respect of loan made by any bank or financial institution to its subsidiary. These exemptions are available subject to the condition that the loan is utilised by the subsidiary for its principle business activities.

107 Investments, Loans, Guarantees & Securities [S. 186] This section corresponds to s. 372A but with changes. Subject to some exceptions, investment by a company through more than two layers of investment company (a company whose principal business is the acquisition of shares, debentures or other securities) is prohibited. Guarantees and securities also covered.

108 Under sub-s. (2), directly or indirectly— (a) giving a loan to any person or other body corporate; (b) giving any guarantee or provide security in connection with a loan to any other body corporate or person; and (c) Investing in securities of any other body corporate, exceeding 60% of its paid-up share capital, free reserves and securities premium account or 100% of its free reserves and securities premium account, whichever is more, will require compliance with this section, unless the transaction is eligible for exemption.

109 Exemptions under s. 186(11): The words “Nothing contained in this section, except sub-section (1), shall apply” seek to grant total exemption except under sub-s. (1). Hence, if a company falls in any of the clauses of subsection (11), it stands totally exempted and need comply with any requirement under s. 186 and such exempted loans/guarantees/securities/investments need not be considered for the purpose of the limits.

110 Exempted cases: (A) Loans, guarantees, securities by-  a banking/insurance company, a housing finance company in the ordinary course of its business;  a company engaged in the business of financing of companies [this includes NBFCs];  a company engaged in the business of providing infrastructural facilities.

111 (B) Investment in securities- (i) by NBFC registered under Chapter IIIB of the RBI Act, having its principal business as acquisition of securities. (ii) by a company whose principal business is the acquisition of securities; (iii) by any company in shares allotted under s. 62(1)(a).

112 Exemption under rule 11: A loan, guarantee or security to a WOS or a joint venture company, or investment made by a holding company in the securities of its WOS. The company must disclose details of such loans, guarantee, security or investment in the financial statement as provided under s. 186(4).

113 The definition of ‘free reserves’ is given in s. 2(43): Only those reserves which, as per the latest audited balance sheet of a company, are available for distribution as dividend. Exclusions: (i) any amount representing unrealised gains, notional gains or revaluation of assets, whether shown as a reserve or otherwise, (ii) any change in carrying amount of an asset or of a liability recognised in equity, including surplus in profit and loss account on measurement of the asset or the liability at fair value.

114 Related Party Transactions (RTP) -[S. 188] Sections 297 & 314 of the 1956 Act have been combined in s Though the requirement of CG approval is dispensed with, the scope of those sections expended. S. 188 will apply to only those types of contracts and arrangements which are specified in clauses (a) to (g).

115 To attract s.188, two essential conditions must be satisfied. Unless both these conditions are satisfied, this section will not apply: (1) The company enters into a contract or arrangement of any one or more of the kinds specified in subs. (1); (2) The other party to the contract or arrangement is a related party as defined in s. 2(76). Section 188 has no retrospective effect; hence contracts and arrangements entered into only after 1 April 2014 will attract this section and those entered into before and subsisting on 1 April 2014 will remain unaffected.

116 The definition of ‘related party’ is an exhaustive definition; hence no party other than those mentioned in the definition can be brought into the definition by implication or for any other reason, as it would amount to rewriting the statutory provision. Accordingly s.188 would apply only if a contract or arrangement is strictly between the company and any of the parties mentioned in s. 2(76).

117 Board has to approve every contract attracting this provision, but according to the first proviso, a contract must be entered into with the prior approval of the company by a special resolution-  in the case of a company having a prescribed paid-up share capital; and  In the case of a contract of prescribed value.

118 While ‘prior approval’ by special resolution in terms of the first proviso to s.188(1) can be by giving the board a general authority to enter into from time-to-time with related parties contracts or arrangements of the kinds specified in s.188(1), rule 15(3) indirectly prohibits it and requires specific approval in each case of RTP.  This is unreasonably cumbersome and impractical restriction which needs to be dispensed with. This will only cause delays in decision-making.

119 According to rule 15(3)(i), except with the prior approval of the company by a special resolution a company having a paid-up share capital of Rs. 10 cr or more shall not enter into a contract/arrangement with any related party. This means, every company having a paid-up share capital of Rs. 10 cr or more must obtain members’ prior approval by special resolution to enter into any contract/arrangement covered by s. 188(1) regardless of the amount involved in the contract/arrangement.

120 Rule 15(3)(ii) prescribes various limits which would be relevant only for those companies which have paid-up share capital of less than Rs. 10 cr but the contract/arrangement falls within the limits laid down in rule 15(3)(ii). In case of wholly owned subsidiary, the special resolution passed by the holding company shall be sufficient for the purpose of entering into the transactions between wholly owned subsidiary and holding company. –rule 15(4)

121 Prohibition against voting by related party As per the second proviso to s. 188(1), “no member of the company shall vote on such special resolution, to approve any contract or arrangement which may be entered into by the company, if such member is a related party”. This means only the related party with whom a contract or arrangement is being entered into cannot vote on the resolution (if such party is a shareholder of the company). Other related parties can vote.

122 Exemption under third proviso: Third proviso to s. 188(1) states: nothing in this sub- section shall apply to any transactions entered into by the company in its ordinary course of business other than transactions which are not on an arm's length basis. Though awkwardly worded, what this means is that every contract or arrangement with a related party entered into by a company in its ordinary course of business will not attract s.188, if it is at arm’s length.

123 A transaction or activity entered into in the normal course of business or which relates or is connected with (directly or indirectly) the company’s business or affairs will be in the ordinary course of business and this is not limited to only manufacturing of products or purchase or sale of goods or services. To put it differently, everything that is necessary or conducive or connected with overall carrying on business or conduct of affairs will amount to a transaction in the ordinary course of business, such as purchase of assets, purchase of goods and materials, availing of or providing services, engaging people as employees or consultants, buying or leasing property, etc

124 Arm’s length means the condition or fact that the parties to a transaction are independent and on an equal footing. A transaction between two related parties that is conducted as if they were unrelated, so that there is no conflict of interest will qualify as arm’s length one. This exemption is not limited to only transactions relating to the selling of goods or services which forms part of the company’s business; it can be availed of in respect of any activity relating to the company’s business or necessary and useful to carry on the business.

125 Register of contracts or arrangements in which directors are interested [S. 189] Every company must keep a register giving separately the particulars of all contracts or arrangements to which s. 184(2) or section 188 applies, in the prescribed form. Rule 16 prescribes form of the register. The register must be placed before every board meeting and signed by all the directors present at the meeting.

126 Every director or KMP must, within 30 days of his appointment, or relinquishment of his office, disclose to the company particulars specified in s. 184(2) relating to his concern or interest in the other associations which are required to be included in the register under that sub- section or such other information relating to himself as may be prescribed.

127 Contract of employment with managing or whole-time directors [S. 190] A copy of agreement between company and MD/WD or (if there is no written contract) a Memorandum of Terms must be kept at registered office. It will be open for inspection by members. Not required to be sent to shareholders.

128 Chapter XIII Appointment of Managerial Personnel [S. 196] A company can’t have MD and Manager simultaneously. But a company can have MD and WD or WD and Manager simultaneously. Maximum tenure of office at a time: 5 Years Re-appointment to be made not earlier than 1 year.

129 Disqualifications for appointment as MD/WD/Manager Subsection (3) states disqualifications of MD/WD/Manager. One of them is age. A person who is below 21 and above 70 can’t be appointed as MD/WD but extension beyond 70 allowed by special resolution. The explanatory statement annexed to the notice for such must state the justification for appointing such person.

130 Appointment to be made by Board and approved by members by ordinary resolution without govt. approval if Schedule V complied with. Notices of board and general meeting to disclose details of terms and conditions, remuneration and director’s interest. A return to be filed within 60 days of appointment / re- appointment. If members disapprove appointment / re-appointment, acts by the appointee before the general meeting are not invalid.

131 Schedule V [Sch. XIII of 1956 Act] Part I of Sch. V contains conditions to be complied with at the time of appointment / re-appointment of any managerial person [MD/WD/Mgr]. No approval of the CG necessary if conditions in Part I are complied with. Section 196 and Part I of Sch V applicable to private companies as well.

132 Remuneration of Directors [S. 197] This section and Sch V don’t apply to private companies. They apply to public companies and subsidiaries of public companies. Private companies (which are not subsidiaries of public companies) are free to remunerate their directors and managing/whole-time directors freely without any limit and any approval of members or govt.

133 New Definition of ‘remuneration’ “remuneration means any money or its equivalent given or passed to any person for services rendered by him and includes perquisites as defined under the Income-tax Act, 1961.” [S. 2(78)] This definition is substantially different from the definition in s. 198 of 1956 Act. While all components of remuneration (other than perquisites) will be taken on actual expenditure basis, perquisites will be taken as per Income Tax Act and Rules.

134 The word ‘equivalent’ means equal in value, measure, force, effect, significance, etc. Thus, any perquisite, amenity, benefit or facility provided by the company to MD/WD as part of his remuneration package and which has monetary value or can be converted into money value, will amount to ‘remuneration’, besides any payment made in money.

135 Remuneration of MD / WD / Manager Overall ceiling on remuneration of all directors: 11% of Net Profit (NP). In excess of 11% can be paid with the approval of shareholders and CG. NP to be calculated as per s. 198 (s. 349 of the 1956 Act) Fees for attending board meetings over and above 11%.

136 Executive Directors’ Remuneration when NP is adequate According to clause (i) of the second proviso to s.197(1), except with the approval of the company in general meeting, the remuneration payable to any one managing director; or whole-time director or manager shall not exceed five per cent of the net profits of the company and if there is more than one such director remuneration shall not exceed ten per cent of the net profits to all such directors and manager taken together.

137 The words ‘except with the approval … shall not exceed’ indicate that payment of remuneration to the executive directors up to 5% or 10% of net profit will not require members’ approval in general meeting, but with the members’ approval a company may pay remuneration in excess of 5% or 10%. However, as per s. 197 (4), remuneration payable to the directors, including executive directors, shall be determined, in accordance with and subject to the provisions of this section, in any of the modes stated below:

138 by the articles of the company, by an ordinary resolution or, (if the articles require), by a special resolution. So, there is a conflict between the second proviso to subs. (1) and subs. (4). This conflict has to be resolved by harmonious construction of the two provisions. The only way to resolve this conflict is to ignore the word ‘except’ in the second proviso to subsection (1). Therefore, it is desirable to take members’ approval by ordinary resolution. Under Part III of Sch. V, appointment and remuneration shall be subject to approval of members in general meeting (by ordinary resolution).

139 Executive Directors’ Remuneration when NP is inadequate or absent If in any financial year, a company has no profit or inadequate profit, it can pay remuneration without govt. approval but subject to and in accordance with the provisions of Section II of Part II of Sch V. If the company cannot to comply with Sch V provisions or wants to pay excess remuneration, previous govt. approval necessary.

140 Schedule V: Part II Part II of Sch. V contains conditions to be complied with in respect of remuneration. Section I of Part II provides: a company having profits in a financial year may pay remuneration to a managerial person(s) within the limits specified in s. 197, i.e. 5% or 10% of NP.

141 Section II of Part II contains provisions applicable in a financial year when a company has no profit or inadequate profit. In such a case, remuneration can be paid to managerial person(s) without govt. approval but within the limit under Para (A) or (B) as applicable. The applicable limit can be doubled if remuneration is approved by special resolution.

142 Section III of Part II contains provisions applicable to remuneration payable by companies having no profit or inadequate profit without govt. approval in certain special circumstances if the remuneration is in excess of the limit specified in Section II of Part II.

143 Remuneration of Non Executive Directors (NED) As per cl. (ii) of the second proviso to s.197(1), except with the approval of the company in general meeting, the remuneration payable to directors who are neither MDs nor WDs shall not exceed,— (A) 1% of the net profits of the company, if there is a MD or WD or Manager; (B) 3% of the net profits in any other case. Thus, members’ approval is not required to pay remuneration upto 1% or 3%

144 The words ‘except with the approval of the company in general meeting’ create conflict between cl. (ii) of the second and subs. (4). This conflict has to be resolved by harmonious construction of the two provisions. The only way to resolve this conflict is to ignore the word ‘except’ in the second proviso to subsection (1). Therefore, it is desirable to take members’ approval by ordinary resolution.

145 But unlike under s.309 of the 1956 Act, NEDs now can be paid monthly remuneration, as s.197(6) states: A director or manager may be paid remuneration either by way of a monthly payment or at a specified percentage of the net profits of the company or partly by one way and partly by the other. But this is subject to the limits of 11% and 1% or 3%.

146 Remuneration for Professional Services As a rule, remuneration payable to NEDs in any other capacity must be included in the 11% and 1% or 3% limits. But remuneration for professional services is excluded, if- (a) the services rendered are of a professional nature; and (b) in the opinion of the Nomination and Remuneration Committee [if the company requires this committee under s. 178], or the Board in other cases, the director possesses the requisite qualification for the practice of the profession. [S. 197(4), Proviso]

147 If any director draws or receives, directly or indirectly, by way of remuneration any such sums in excess of the limit prescribed by this section or without the prior sanction of the CG, where it is required, he shall refund such sums to the company and until such sum is refunded, hold it in trust for the company. [S. 197(9)] The company shall not waive the recovery of any sum refundable to it, unless permitted by the CG. [S. 197(10)]

148 According to s.197(14), a managing or whole-time director of a company who is in receipt of any commission from the company can be paid any remuneration or commission from any holding company or subsidiary company of such company subject to its disclosure by the company in the Board's report.

149 Sitting fees NEDs (including independent directors) may be paid fees for attending Board or Committee meetings. Fees can be paid also for any other meeting if so decided by the Board. Such fees are outside the 11% and other percentage limits but must be within the prescribed monetary limit. Different fees for different classes of companies and for independent and other directors may be prescribed. Rule 4 prescribes Rs. One lakh per meeting fee.

150 Filing and Disclosure A return in the prescribed form must be filed with the Registrar within 60 days of appointment of managerial person. The return must be accompanied by a certificate of auditor or the company’s secretary or of (if the company is not required to appoint a secretary), a secretary in whole-time practice to the effect that the requirement of Sch V have been complied with.

151 A copy of the board resolution or agreement executed, relating to the appointment, re- appointment or renewal of the appointment, or variation of the terms of appointment, of a MD must be filed with the RoC under s Every listed company must disclose in the Board's report, the ratio of the remuneration of each director to the median employee's remuneration and such other details as may be prescribed under s. 197.

152 Key Managerial Personnel (KMP) [S. 203] Every listed company (regardless of paid-up capital) and every other public company having a paid-up capital of Rs. 10 crore or more must have all the three following whole-time KMPs: MD or CEO or Manager If none of the above is there, then WD; Company Secretary; and Chief Financial Officer.

153 KMP must be appointed by a resolution of the Board containing the terms and conditions of the appointment including the remuneration. [S. 203(2)]. Companies already having persons holding positions need not be reappointed but only designated. A KMP must not hold office in more than one company (except in its subsidiary) at the same time. However, a KMP can be a non-KMP director of any company with the permission of the Board. [S. 203(3)]

154 A KMP holding office in more than one company at the same time on the date of commencement of this Act, must choose, within six months from such commencement, one company, in which he wishes to continue to hold the office of key managerial personnel.

155 A company may appoint a person as its MD, if he is the MD or Manager of one, and of not more than one, other company. Such second appointment must be made or approved by a resolution passed at a board meeting by unanimous resolution of the directors present at the meeting and of which meeting, and of the resolution to be moved thereat, specific notice has been given to all the directors then in India.

156 An individual cannot hold two positions of Chairperson and Managing Director or CEO at the same time if- (a) the company’s articles do not provides otherwise; or (b) the company does carries on multiple businesses: But the above restriction will not apply to such class of companies engaged in multiple businesses and which has appointed one or more CEO for each such business as may be notified by the Central Government.

157 Every KMP must be appointed by the board of the company and terms and conditions of employment and remuneration must be determined by the board. If KMP’s office becomes vacant, the Board must fill the vacancy within six months from the date of such vacancy.

158 Secretarial Audit [S. 204] The following companies require Secretarial Audit (SA):  Every listed company (regardless of amount of capital);  every public company having a paid-up capital of Rs. 50 cr or more;  every public company having a turnover of Rs. 250 cr or more. Secretarial Audit Report (SAR) must be annexed to the Board’s Report. Only PCS is eligible to do SA.

159 The company must give all assistance and facilities to the PCS for auditing the secretarial and related records of the company. The Board must fully explain in Board’s Report any qualification or observation or other remarks made by the PCS in SAR.

160 Secretarial Audit Form- MR3 It requires report on compliance with the provisions of the Acts and Rules/Regulations/Guidelines and also certain other matters mentioned in the form. There is also an item which states: (iv) …… (Mention the other laws as may be applicable specifically to the company).

161 This clause should be interpreted restrictively and not liberally, because of the use of the word “specifically”. Only those laws which are specially applicable to a company should be included and not all those laws which are generally applicable to all or most of the companies; e.g. in the case of an NBFC company, in addition to clauses (i) to (v), RBI Act and RBI Regulation/Directions will apply.

162 There are some special laws like Boilers Act, Insecticides Act, Drugs & Cosmetics Act, etc. Such special laws only will have to be covered in the secretarial audit and not general laws applicable to all industries, such as tax laws, labour and industrial laws, etc. Such laws will have to be identified by the company and secretarial auditor and included in the secretarial audit. If there is no special law applicable to a company, clause (iv) will have nothing to include

163 Liabilities of PCS in respect of secretarial audit Contravention of this section by a company or any officer of the company or the PCS would invite punishment of fine of minimum Rs 1 lakh and maximum Rs 5 lakhs. Besides, s. 143 is applicable as its sub-s. (14) provides: The provisions of this section shall mutatis mutandis apply to— (b) the company secretary in practice conducting secretarial audit under 15 section 204.

164 Section 143 (12) provides: Notwithstanding anything contained in this section, if an auditor of a company, in the course of the performance of his duties as auditor, has reason to believe that an offence involving fraud is being or has been committed against the company by officers or employees of the company, he shall immediately report the matter to the Central Government within such time and in such manner as may be prescribed.

165 Section 143(15) provides: If any auditor, cost accountant or company secretary in practice do not comply with the provisions of sub-section (12), he shall be punishable with fine which shall not be less than one lakh rupees but which may extend to twenty-five lakh rupees.

166 Duties of Company Secretary [S. 205] New provision Three statutory functions:  to report to the Board about compliance with the provisions of this Act, the rules made under the Act and other laws applicable to the company;  to ensure that the company complies with the applicable secretarial standards of ICSI;  to discharge such other duties as may be prescribed.

167 Thank you and wish you good luck for safe landing in the turbulent weather of the Companies Act 2013


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