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Business Meetings – BCR Notes CA Foundation

A business meeting is a formal gathering of business people for discussing and deciding some business matters. In business organisations many important decisions are taken in meetings. Business meetings take place at all levels of management. At the top level, Board of Directors hold meetings from time to time for taking crucial decisions regarding the company’s business.

At the middle level meetings of heads of departments deliberate upon inter-departmental issues. At the supervisory level, meetings of works committee are held to discuss and decide day to day problems of the factory and so on.

The main steps involved in conducting business meetings are as follows :

• Sending notice of the meeting
• Attaching agenda with the notice
• Ascertaining the quorum for the meeting
• Moving motions in the meetings
• Voting, poll and proxy
• Passing resolutions
• Recording minutes of the meeting.

Types of Meetings:
In a public limited company the following types of meetings are held:
1. Meeting of Board of Directors : Board of Directors is the highest organ of management. Meetings of the Board are held from time to time to take important decisions about the company’s affairs. New issues of shares and debentures, acquisition of some other firms, approval and adoption of half yearly accounts, declaration of dividend are some examples of issues which are decided in such meetings.

2. Statutory Meeting: This is the first meeting of’the members after the in-cooperation of the company. Its purpose is to acquaint the members with the company’s affairs. A statutory report is sent along with the notice of the statutory meeting. At this meeting, the members can discuss matters relating to the formation of the company.

3. Annual General Meeting : Every company is required to hold every year a general meeting of its members. This provides them an opportunity to discuss the working and affairs of the company.

4. Extraordinary General Meeting : It is a meeting held between two annual general meetings. An extraordinary general meeting is called to consider an urgent and important matter, the consideration of which cannot be postponed to the next annual general meeting. For example, the management of the company may convene an extraordinary general meeting for obtaining the approval of members for sub-division of the company’s share of ₹ 10 each into 5 shares of ₹ 2 each.

5. Class Meetings: Meetings of preference shareholders or of debenture-holders may be held to transact some business concerning them.

Command Meeting	Committee Meeting
Meeting between Managers and subordinates.	Is a group appointed by parent organisation comprising of experts for decisions making.
Manager alone is responsible for decision making- Autocratic.	Systematic and logical steps which involves all members in the decision making process – participative.
Main objective of the manager is to share information, state, policies or give directions.	Objectives could vary advisory/problem solving/ decision making etc.

Notice:
A proper notice of the forthcoming meeting must be sent to every person entitled to attend and vote at the meeting. It is a statutory requirement to issue a notice. A meeting is not properly convened unless notice of the meeting is sent. The notice must be in writing and it must be given sufficiently in advance. In case of company meetings, the notice must be sent 21 days before the date of the meeting.

The notice of a meeting must specify :

• The date, time and place of the meeting
• The name of the company
• The nature, purpose and type of meeting
• The authority by which notice is issued
• The name and signature of the person issuing the notice
• The matters to be discussed at the meeting, in serial order (unless separate agenda is sent)
• In the case of special business an explanatory statement
• The exact wording of any proposed resolutions
• The date of issue of the notice
• Any enclosures required to be sent with the notice.

A notice is a piece of formal communication. It should be simple, brief and clear.
1. Notice of Board Meeting: A notice of every meeting of the Board of Directors must be given in writing to every director at his/her usual address. The notice is prepared by the company secretary in consultation with the chairman.
Example 1 : Notice of a Board Meeting

ABC LIMITED
21, Bhikaji Cama Place,
New Delhi – 110 056
Notice

A meeting of the Board of Directors of the company will be held on May 10,2007 at 4 p.m. at the Registered office of the company at 21, Bhikaji Cain a Place, New Delhi to consider, approve and to take on record the unaudited quarterly financial results for the period ended June 30,2007. Kindly make it convenient to attend.
For and on behalf of the Board of Directors.
B.P. Sharma
Company Secretary
New Delhi
19th April, 2007

2. Notice of annual general meeting: A notice of at least 21 days must be given for the annual general meeting. The notice must state the date, time and place of the meeting. It must specify that a member entitled to attend and vote at the meeting can appoint a proxy. Copies of Annual Accounts, Directors’ Report and Auditors’ Report are sent along with the notice.

Example 2 : A Notice of Annual General Meeting

ABC Limited
21, Bhikaji Cama Place
New Delhi – 110 056
Notice

Notice is hereby given that the Twenty first Annual General Meeting of the company will be held on September 11,2007 at 11 a.m. at Air Force Auditorium, Subroto Park, New Delhi. Copy of the agenda and proxy form is attached herewith.
By order of the Board.
B.P. Sharma
Company Secretary
August 10, 2007
Notes:
→ A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote in his place. A proxy need not be a member of the company. The instrument appointing a proxy should however be deposited at the registered office of the company not less than forty eight hours before the commencement of the meeting.

→ The transfer Books and Register of Members will be closed from August 12, 2007 to September 11, 2007.

→ The dividend when declared and sanctioned for payment will be payable on and from lo those share-holders whose names are on the Register of Members on 11th August, 2007.
Notice is hereby given that the 10th Annual General Meeting of the Members of XYZ Ltd. will be held on _______, at the Registered Office of the Company at Plot Nos. 16-18, Bandra Kurla Complex, Mumbai at ___________ a.m. to transact the following business.

Ordinary Business:
→ To receive, consider and adopt the Audited Balance Sheet of the company as on _______ and the Profit & Loss Account for the year ended on that date and Auditor’s and Director’s Reports thereon.

→ To declare dividend for the year ending _______.

→ To appoint a director in place of Mr _______ who retires by rotation and being eligible, offers himself for re-appointment.

→ To appoint Statutory Auditors of the company; and fix their remuneration. ”
Regd. Office:                                                                                    For and on behalf of Board of Directors
Plot No. 16-18,
Bandra Kurla Complex
Mumbai                                                                                           Chairman of the Meeting

Notes:

• A member entitled to attend and vote is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
• Explanatory statement relating to special business is annexed to this Notice as required under section 173 of the Companies Act, 1956.
• The Register of members and the Share Transfer Books of the Company will remain closed from ___________ both days inclusive.
• Members are requested to notify immediately change of address, if any, to company’s Registered Office. While communicating to the company, please quote the folio number.

Shareholders desirous of obtaining any information concerning the accounts and operations of the company are requested to address their questions to the company’s Head office, so as to reach at least 5 days before the date of the meeting so that the information may be made available at the meeting to the best extent possible.

3. Notice of extraordinary general meeting: Notice for an extraordinary general meeting must be given 21 days before the date of the meeting. The notice must specify the date, time and place of the meeting. The purpose of the meeting is also stated in the notice.

Example 3 : A Notice of Extraordinary General Meeting

ABC Limited
21, Bhikaji Cama Place
New Delhi – 110 056
Notice

Notice is hereby given that extraordinary general meeting of the company will be held on 10th July 2007 at 10 a.m. at FICCI Auditorium, Tansen Marg. New Delhi to consider and if thought fit to pass the following resolution which will he proposed as a special resolution.
“Resolved that every equity share of ₹ 10 each fully paid-up be sub-divided into five shares of ₹ 2 each.”
By order of the Board
B.R. Sharma
Company Secretary
18th June, 2007

Agenda:
Agenda means a document that outlines the various matters to be discussed at a forthcoming meeting. It consists of a list of ‘things to be done’ at a meeting. It is in the form of a statement specifying the order in which the various matters are to be dealt with. Generally, the routine business is placed prior to the special business. Agenda is prepared and sent for all types of meetings. The Secretary is in change of the agenda. He prepares the agenda in consultation with the Chairman of the company. The agenda is sent along with the notice of the meeting.

The main features of agenda are as follows :

• It outlines all matters to be discussed in the meeting in a serial order
• It is fixed before hand
• It is usually sent along with the notice of the meeting
• It is customary to mention “any other matter with the permission of the chair” as the last item in the agenda
• Its main purpose is to set the tone and direction of the meeting.

Five Tips for Efficient Meetings:

• Don’t meet if the same information could be covered in an e-mail or a brief report.
• Begin the meeting on time even if a few participants are missing.
• Be absolutely clear on what the agenda is and follow it.
• Make it interactive. Don’t dominate the discussion.
• Bring the meeting to a clear, constructive close.

What goes into an agenda?

• The purpose and the desired outcome of the meeting.
• Who the participants are.
• The date, time and place.
• The length of the meeting.
• A list of the topics to be covered.
• A list starting who will address each topic and for how long.
• Any background information participants will need to know.

Preparation and despatch of agenda before the meeting is useful in the following ways:

• It helps the members to come prepared for the meeting
• It helps the chair person to conduct the meeting in a smooth and efficient manner
• It ensures that only matters relevant to the meeting are discussed
• It ensures that every point is properly taken up for discussion
• It facilitates the preparation of the minutes.

Distinction Between Agenda And Circular:

Basis of Distinction	Agenda	Circular
1. Purpose	To inform about what is to be done in a forth-coming meeting	To inform all departments and branches of the organisation
2. Contents	A list of items to be taken up in a meeting	Information which is of interest and use to all parts of the organisation
3. Target audience	The members entitled to attend the meeting	Heads of various departments and branches attend the meeting.
4. Time period	To be sent usually 21 days before the meeting	No specified time period
5. Attachment	Usually sent along with notice of the meeting	No such attachment

While preparing the agenda, the secretary should keep in mind the following points:

• The agenda should be precise and clear
• It should be brief
• Each item on the agenda should be numbered serially
• The routine business should be listed before the special business
• All items of similar nature should be placed in continuous order.

Example 4 : Agenda of Board Meeting

ABC Limited
21, Bhikaji Caina Place
New Delhi – 110 056

Agenda of the meeting to be- held on May 10, 2007.

• To approve and sign the minutes of the last Board Meeting held on….
• To consider audited Annual Accounts and Directors’.Report to shareholders for the year ended 31st i March, 2007.
• To recommend dividend.
• To fix up the dale for concerning the Annual General Meeting and business to be transacted therein.
• To fix up the period during which Register of Members and the Share Transfer Book will be closed.
• To consider any other matter with the permission of the chair.
• To fix date of the next Board Meeting.

By the order of the Board
B.P. Sharma
Company Secretary

Example 5 : Agenda of Statutory Meeting

ABC Limited
21, Bhikaji Cama Place
New Delhi – 110 056

Agenda of the statutory meeting to be held on …………………….

• To call upon the secretary to read the notice convening the statutory meeting.
• To draw the attention of the members to the fact that the ‘List of Members’ is open for inspection.
• To propose that the Statutory Report as circulated be taken as read.
• To explain to the members that meeting is convened to as per section 165 of the Companies Act, 1956 I so as to afford an opportunity to the members to discuss any matters relating to the formation of the company and arising out of the Statutory Report.
• The Chairman to refer to matters, if any, relating to formation, progress and financial results and comment upon the financial position as shown in the Statutory Report.
• Invite discussion and answer the questions.
• To consider and approve the Statutory Report. By the order of the Board

B.R. Sharma
Company Secretary

Example 6:
Agenda of Annual General Meeting

ABC Limited
21, Bhikaji Cama Place
New Delhi- 110 056

Agenda of the Annual General Meeting to be held at ……………..
On …………… at …………………
1. To read the Annual General Meeting to be held at ………………..

2. The Secretary to read the Auditor’ Report on the Accounts.

3. The Chairman to move that the Directors’ Report and Accounts, as printed and circulated, be taken as read.

4. The Chairman’s speech.

5. The Chairman to propose that the Balance Sheet as at 31 st March, 2007 and the Profit & Loss Account for the year ended on that dale, and the Reports of Directors and Auditors thereon be approved and adopted.

6. The dividend of ₹ 10 per equity share as recommended by the directors be approved and sanctioned for payment.

7. To elect directors in place of those who arc retiring by rotation :

• To elect a director in place of Shri ………………. who is retiring by rotation and being eligible for re-election offers himself for re-election.
• To elect a director in place of Shri ………………. who is retiring by rotation and being eligible for re-election offers himself for re-election.

8. To appoint auditors for the next year and fix their remuneration.

9. To lake up any other matter with the permission of the chair. By order of the Board
B.P. Sharma
Company Secretary

Example 7 : Agenda of Extraordinary General Meeting

ABC Limited
21, Bhikaji Carna Place
New Delhi -110 056

Agenda of the Extraordinary General Meeting to be held on …………………
1. The Secretary to read the notice convening the meeting.

2. Splitting up of shares :

• The Chairman to explain the reason for the proposed splitting up of Equity shares and to move the following resolution as a special resolution – “That the one crore fully paid Equity Shares of ₹ 10 each be, and are hereby split into 5 crore fully paid Equity Shares of ₹ 2 each.”
• Mr ………………. to second the motion.
• The Chairman to invite discussion, put the motion to the meeting, take votes if necessary and declare the results.

3. Vote of thanks to the chair. By the order of the Board
B.P. Sharma
Company Secretary

Minutes:
Meetings have become an important means of exchanging ideas, discussing problems and issues and arriving at decisions. The decisions and resolutions made at meetings need to be recorded for future reference and actions. A written record of whatever was discussed and decided in a meeting is known as minutes.

Meaning of Minutes:
A minute is defined as ‘a note to preserve the memory’. The term ‘Minutes’ means a permanent written record or brief summary of the proceedings of a committee meeting or assembly. They are an official record of the deliberations of any formal meeting of persons, e.g., Parliament, a Legislative body, a Municipal Council, a Board of Directors or any Committee.

There are several types of meetings where discussions take place and certain decisions are taken. It is often necessary to keep an official record of these meetings. In the case of Parliament or Legislative body, the proceedings are recorded verbatim or in full. But in case of committee meetings only a summary is recorded. The term ‘minutes’ is generally used to refer to a summarised record of committee meetings. Thus, minutes are the official and systematic record of the proceedings of a meeting. They indicate when and where a meeting was held, who chaired the meeting, who were present, what decisions were taken, and so on.

Objectives and Importance of Minutes:
All organisations, whether business or social, consider it necessary to maintain a proper record of the business transacted at their various meetings. Once minutes are approved and signed, they are accepted as an evidence even in the court of law. In case of joint stock companies, it is compulsory to maintain minutes of the proceedings of every meeting of Board of Directors and members.

The main uses of minutes are as follows :

• Minutes contain a record of the business transacted and decisions taken at a meeting. They serve as a permanent record for future reference.
• Minutes serve as a reminder of the actions to be taken to implement the decisions arrived at a meeting.
• In case of joint stock companies, law requires maintenance of minutes. The interested parties are allowed to inspect the minutes.
• Minutes can be produced as evidence of the proceedings in a Court of Law.
• Minutes help in the efficient conduct of business. If proper minutes are not kept, the decisions arrived at meetings may be questioned by any member or Auditor and these cannot be proved in a Court of Law.

Distinction Between Minutes and Reports:
Sometimes verbatim (word by word) or summarised reports of the proceedings of meetings are prepared for circulation among members or for sending to the newspapers for publication. It is necessary to distinguish between such reports and minutes, although both record the proceedings of a meeting.

Distinction Between Minutes and Reports:

Basis of Distinction	Minutes	Reports
1. Starting word	A minute begins with the word ‘Resolved’.	The word ‘Resolved’ is not written while writing a report.
2. Form	Minutes are generally not written in a narrative form. They record date, time and place of the meeting and resolutions passed.	Reports are always written in a narrative form giving a historical account of all that was discussed.
3. Details	Minutes are summarised record of the proceedings of a meeting.	Reports may be verbatim or summarised.
4. Evidence	Approved and signed minutes are accepted by the courts as evidence.	Reports are not accepted by the courts as evidence.
5. Time of preparation	Minutes can be prepared within a reasonable time after the meeting.	Reports are prepared just after the meeting.
6. Number	Separate minutes have to be prepared for each meeting.	A report may include summaries of more than one meeting.
7. Manner of re-cording	The exact wording of resolutions adopted at the meeting must be recorded in minutes.	A report need not contain exact wording of the decisions arrived at the meeting.

Types of Minutes:
Minutes are of two types –

• minutes of resolutions
• minutes of narration.

1. Minutes of Resolutions: In this type of minutes, only the resolutions passed at the meeting are recorded. It always begins with the words “Resolved that” followed by the exact resolution. The discussion which preceded the resolutions is not recorded. Even the movers and seconders of the resolutions are not mentioned. This is the usual form of writing minutes.

2. Minutes of Narration : In this type of minutes, the resolutions passed at the meeting are recorded. In addition, a brief account of the business discussed and transacted and the voting pattern are also recorded. Minutes of narration are somewhat similar to a report.

Minutes of narration generally cover the following :

• Names of those present at the meeting.
• Signing of minutes of the previous meeting.
• Recording of leave of absence.
• Taking note of reports, plans and financial statements.
• Tabling of correspondence.
• Tabling note of notice of interest of directors in contracts.

A minute of narration may also form part of the resolution.

Specimen of A Minute of Resolution:
Resolved that a call of ₹ 5 per share be made upon the Equity Shares (Nos. 1 to 10,00,000) of the company and such call to be payable on 31st July, 2004, to the company’s bankers, State Bank of India, Parliament Street, New Delhi, and that the call letter be issued to the shareholders on 31st May, 2004.

Specimen of A Minute of Narration:

• The Secretary read the notice convening the meeting.
• The solicitor to the company, Mr. Maheshwar Dayal, produced the certificate of incorporation No. 12345 dated 7th June, 2004.
• The consent to act as directors was signed by each of the directors and the secretary was instructed to file the same with the Registrar of Companies.

Specimen of A Minute of Narration Forming Part of Minutes of Resolution:
A letter from Mr. K. Madhavan, the Marketing Manager of the company, dated 11th April, 2004 tendering his resignation was read and it was resolved that the same be accepted as and from 11th April, 2004. Further resolved that the post be advertised in the Times of India and Economic Times. The draft of the advertisement was approved.

Contents of minutes:
Minutes can be written in two ways –

• tabular form
• narrative form.

1. Tabular Form: In this type of minutes, only the resolutions passed at the meeting are record¬ed. It always begins with the words “Resolved that” followed by the exact resolution. The discussion which preceded the resolutions is not recorded. Even the movers and seconders of the resolutions are not mentioned. This is the usual form of writing minutes.

2. Narrative Form: In this type of minutes, the resolutions passed at the meeting are recorded. In addition, a brief account of the business discussed and transacted and the voting pattern are also recorded. Minutes of narration are somewhat similar to a report.

Minutes of meetings generally contain the following particulars :

• The kind of meeting.
• Date, time and place of the meeting.
• The name of the person in the chair.
• Names of directors, secretary and persons in attendance.
• Reading and confirmation of the minutes of the last meeting and their signing by the Chairman, together with any matters arising from the minutes.
• Brief subject heading of each minute with the resolutions adopted.
• Financial statements and reports presented and approved in the meeting. These may be put in the form of Appendix.
• Appointments made, if any.
• In the case of special resolution, the number of votes for and against.
• Names of persons dissenting with any resolution passed at the meeting.
• Instructions given by the meeting to the Secretary or other officers.
• Chairman’s signature and date of verification of minutes as correct.

Guidelines for Writing Minutes:
Drafting of minutes is largely a matter of skill, judgement and practice. The writer of minutes needs to understand the situation, listen attentively and take notes during the, discussion. Minute is largely standardised and the standard form should be followed as far as possible.

Some hints for writing minutes are given below :
1. Minutes of each meeting should have a heading containing the type of meeting.

2. The date, time and place at which the meeting was held should be mentioned.

3. In the case of the general meetings and board meetings, it is usual to state the number of the meeting.

4. The minutes should contain the names of all those who were present and the capacity in which they were present. But where the attendance is large, the names of persons attending are not stated in the minutes. Only the number of persons who attended the meeting is mentioned. A separate register is kept for signing by each person attending the meeting.

5. Each item in the minutes is numbered and given a brief heading.

6. Each item should be written in the minutes in the same order in which the business was transacted.

7. Minutes should be brief but no important detail should be omitted.

8. Defamatory language, irrelevant points should not be recorded.

9. While writing minutes, no reference should be made to the feelings of the persons present. The tone of the minutes should be impersonal, Le., written in third person.

10. Dates and figures should be clearly and precisely stated in the minutes. If a reference is made to certain letters or reports, their numbers and dates should also be mentioned. This is necessary to. avoid the possibility of ambiguity and misunderstanding.

11. In case of a special resolution passed at the meeting, the number of those in favour and against should be recorded.

12. The secretary should go on taking notes during the meeting. If a clarification is required, it should be immediately sought. The minutes should be written as quickly as possible after the meeting so that no important facts are forgotten.

13. It is advisable for the secretary to show the rough draft of the minutes to the Chairman and get his approval. This will avoid incorrect recording and alternations later on.

14. The language of the minutes should be simple and precise. Simple past tense and passive voice are preferable. Be objective in your recording and use Reported Speech. Be careful while converting Direct Speech to Indirect Speech.

15. Ensure that each item discussed in the meeting has been recorded.

16. Use a separate paragraph for each item.

17. Record full text of motions, if a vote was taken and give exact text of resolutions adopted at the meeting.

Minutes of Statutory Meeting:
A specimen of minutes of statutory meeting is given below:

XYZ Company Limited
Registered Office : 11, Parliament Street, New Delhi

Minutes of the proceedings of the Statutory Meeting of XYZ Company Limited held on …………….. 2004 ………….. at ……………. p.m. at die Registered Office of the Company.
Mr …………….. in the chair
Mr ……………..
Mr ……………..
Mr …………….. directors
Mr …………….. secretary
and …………….. shareholders present as per attendance book.
1. Notice of the meeting: The secretary read the notice convening the meeting.

2. Statutory report: The statutory report dated was taken as read with the consent of the meeting.

3. List of members : The Chairman informed the members that according to the provisions of section 165 of the Companies Act, 1956, the list of members was placed on the table for the inspection of members.

4. Chairman’s address: The chairman then reviewed the activities of the company since formation and referred to the financial position and business prospects. He also invited the members to discuss and ask questions on any matter relating to the formation, financial position and prospects of the company and any other matter arising out the statutory report.

5. Approval of modification of contract: After the questions put by members were satisfactorily answered, a shareholder moved that the modifications in certain contract referred to in the report be approved. Accordingly, it was “Resolved that the modifications in the contracts as stated in the statutory report be, and are hereby, approved”.

6. Adoption of report It was then moved that the statutory report as presented be approved. Accordingly, it was unanimously.
“Resolved that the statutory report be, and is hereby, approved.”

7. Vote of thanks: A vote of thanks to the Chair was proposed and acclaimed by all, the chairman declared the meeting closed.
Place ……………..
Dated ……………..                                    Sd. ……………..                                Sd. ……………..
Secretary                                    Chairman

Minutes of Board Meeting:
A specimen of the minutes of the first meeting of Board of Directors is given below:

XYZ Company Limited
Registered Office : 11, Parliament Street, New Delhi

Minutes of the Board Meeting held at the Company’s Registered Office …………….. on …………….. day of …………….. 2004 …………….. at …………….. A.M./P.M.
Present:
Mr …………….. Chairman
Mr …………….. Managing Director
Mr …………….. Director
Mr …………….. Secretary
In attendance, Mr. …………….., solicitor.
1. Chairman : Upon the directors taking their seats, Mr. …………….. Was requested to take the Chair.

2. Certificate of Incorporation : Mr. …………….. produced the certificate of incorporation of the Company No. …………….. dated …………….. 20 ……………..

3. Chairman : It was unanimously resolved that Mr. …………….. be, and is hereby, elected and appointed Chairman of the Company and of the Board of Directors.

4. Quorum at Board meetings: It was decided that, in accordance with clauses Nos …………….. of the Company’s Articles, the quorum of directors at Board meetings should be three directors.

5. Appointment of Managing Director: It was resolved that Mr. …………….. be, and is, hereby, appointed Managing Director of the Company for a period of five years at a salary of ₹ per month.

6. Appointment of Secretary: It was resolved that Mr …………….. be, and is hereby, appointed secretary of the company at a salary of ₹ per month, the appointment to be determinable upon three months’ notice given by either the Company or the Secretary.

The minutes then record the decisions of the Board and resolutions passed in respect of the following matters:

• Appointment of bankers, and conferring authority on the person who would sign the cheques.
• Endorsement of cheques.
• Signature of bills of exchange.
• Appointment of auditors.
• Approval of common seal of the Company and the persons who would hold keys of the locks.
• Consideration of agreement with vendors.
• Issue of shares to vendors.
• Issue of prospectus.
• Fixation of date of next meeting.

Minutes of Annual General Meeting:
A specimen of the minutes of the annual general meeting of a company is given below:

XYZ Company Limited
Registered Office : 11, Parliament Street, New Delhi

Minutes of …………….. Annual General Meeting of the Company held at …………….. on the …………….. day …………….. 20 …………….. at …………….. A.M./P.M.
Present:
Mr. …………….. Chairman
Mr. …………….. Mr. …………….. Secretary
Mr. …………….. Mr. …………….. Auditor
Mr. …………….. Director Mr. …………….. By invitation
and …………….. Shareholders as per attendance book

Subject	Proposer and Seconder	Details
1. Notice of meeting		The secretary read the notice concerning the meeting.
2. Auditor’s report		The secretary read the report of the auditors on accounts and balance sheet.
3. Directors’ report and accounts	Proposer: Chairman Seconder: Mr. ……………..(Shareholder)	Directors’ report and accounts previously printed and circulated were taken to be read. Then the chairman addressed the meeting, invited questions and answered them satisfactorily. Resolved: That the directors’ report and accounts for the year be, and are hereby, approved and adopted.
4. Declaration of dividend	Proposer: Chairman Seconder: Mr. …………….. (Shareholder)	Resolved that a dividend of ………………. % on Preference Shares and ………………. % on Equity Shares, less income-tax, as recommended by directors be, and is hereby, declared payable to shareholders appearing in Register of Members as on ……………….. 20 ………………
5. Re-election of directors	Proposer: Chairman Seconder: Mr. ……………..(Shareholder)	Resolved that Mr …….., a director, retiring by rotation but eligible for re-election be, and is hereby, re-elected as a director of the company.
6. Appointment of auditors	Proposer: Chairman Seconder: Mr. …………….. (Shareholder)	Resolved that M/s ………., the retiring auditors be, and are hereby, appointed auditors at a remuneration of ₹ ………………. to hold office until the next annual general meeting.
7. Vote of thanks	Proposer: Chairman Seconder: Mr. …………….. (Shareholder)	A vote of thanks was unanimously accorded to the Chairman and other directors.
	Chairman ………….	Dated …………

1. Notice: The secretary read the notice convening the meeting.

2. Chairman’s speech : The Chairman explained to the meeting the need for amending regulation 29(1) of the Company’s Articles of Association. He pointed out the difficulties that are likely to arise to the Company as well as the members if this amendment is not carried out. He moved the following resolution as a special resolution :
“Resolved that clause (1) of regulation 29 of the Company’s Articles of Association be deleted and the following substituted therefor :
(i) …………………………………… .”
After discussion, the motion was put to vote. The requisite number of members having demanded a poll, the Chairman decided to take the poll forthwith. After the report of the scrutineers was received, the Chairman declared the motion passed by the requisite majority.

3. Vote of thanks: There being no other matter, the meeting ended with a hearty vote of thanks to the Chair.
Place …………….. Sd. …………….. Sd ……………..
Date …………….. Secretary …………….. Chairman

Alteration of Minutes:
Ordinarily, the minutes cannot be altered once they are written. However, any minor mistake or clerical error which is detected when the minutes are being read at the next meeting, can be rectified and signed by the chairman. If the mistake is of a serious nature, such as a material misdescription or incomplete description of the proceedings, then that part of the minutes may be sourced out and the correct minutes written up afresh.

The chairman must sign both the cancellation as well as the fresh entry. However, if a serious or material mistake in the terms of any resolution is detected, this should not be rectified by scoring out. Rather a fresh resolution should be adopted at the next meeting to undo the effect of the earlier resolution. The secretary should make some notes against the earlier resolution by giving the reference of the new resolution.

Confirmation of Minutes:
Usually the minutes of a meeting are read at the next meeting before it is signed by the chairman. This is done to provide an opportunity to point out any mis-statement or error which may have crept into the minutes. The reading of minutes of a previous meeting at the next meeting is a mere acknowledgement that the proceedings have been correctly recorded. If during the reading of the minutes some members point out any discrepancy or mis-statement, the same are rectified before the minutes are signed by the chairman. This procedure is known as confirmation or verification of minutes.

Handling Business Meetings (Role of Chairman):
1. Clearly Define the Purpose of the Meeting : It may not at all be necessary to call a meeting. It is quite possible that the purpose may be achieved by circulating a note. If it is necessary to call a meeting, decide its purpose clearly.

2. Select the Participants : The persons who are to attend the meeting, should be selected carefully. They must have knowledge and interest in the issue and be able to spare adequate time for the meeting. The number of participants should be restricted.

3. Give Adequate Notice: The members should be informed well in advance of the meeting. The notice of the meeting should mention clearly the day, date, time and venue of the meeting.

4. Distribute the Agenda : The agenda (list of items to be discussed) of the meeting should be circulated will in advance. This will enable the members to come prepared and participate effectively in the meeting.

5. Provide All the Facts: When the agenda requires the members to know some important facts, provide the necessary facts. For example, if a meeting has been called to discuss decline in sales, the figures concerning sales for the current year/quarter and past year/quarter should be communicated to the members.

6. Observe Punctuality : Start the meeting on time. Do not think of those who are absent, think of those who are present. You can end the meeting on time only when you begin on time.

7. Ensure the required quorum: Quorum means the minimum number of persons who must be present before the meeting can begin.

8. Begin with a Positive Note: Chairman’s opening remarks set the tone and direction of the meeting. Give the members the feeling that they have come for a useful purpose and they are going to make their distinct contribution towards the accomplishment of that purpose.

9. Encourage Participation : There is often general reluctance to speak on the part of members. They may be anxious to know what stand others take. One may expect others to give one the lead. The chairman should break the initial silence and encourage participation in the deliberations.

10. Be Brief: The chairman’s initial remarks should be brief. Short opening suggests urgency of the issue and keeps members alert.

11. Remain Impartial: The chairman should take no sides and should be neutral. He should give everyone the opportunity to speak and participate in the meeting. Emotional build up, personality flare ups and tension should be controlled through humour.

12. Control the Deliberation: Ensure that one person speaks at a time and members maintain silence. Private discussions need to be avoided as these distract attention Handle the meeting firmly to keep it orderly and on the right track. Do not suppress unfitting views. Clarify contributions of members by frequently summarising the deliberations.

13. Sum Up : Before end of the meeting, point out the decisions meeting arrived at. Along with the decisions, disagreements, if any should also be stated clearly. Indicate how the decisions made are to be implemented, close the meeting in time and do not allow it to drag on unnecessarily. However, abrupt close is not good.

Skills Required By Chairman of Meetings:
In order to perform his role effectively in meeting, the chairman requires the following skills:

• Know the quorum for the meeting and ensure the quorum before starting the meeting.
• Call the meeting to order and ask the secretary to read the agenda of the meeting.
• Clarity the purpose of the meeting in short and vivid manner.
• Show a positive attitude.
• Give every member the opportunity to speak and allocate time in equitable and fair way.
• Ability to check personality clashes and emotional flare-ups.
• Remain cool and impartial even under provocation.
• Summarise the discussion at appropriate intervals and at the end of the discussion.
• Deal with questions directed at him tactfully.
• Keep liaison with the secretary so that proceedings of the meeting are duly recorded.
• Encourage and support the discussion through appropriate gestures. Discourage those who interfere with the order in the meeting.

Appendix:
How effectively do you manage your meetings?
For each factor, circle a number that most represent your view of your own management of the meeting that you chair.

1. I spend the minimum amount of time in meetings and they are effective and well planned.	12345	I spend far too much time in meetings and mainly they could be more effective.
2. I always plan ahead and clearly define the purpose of my meeting.	12345	I rarely plan my meetings in advance and the purpose is probably unclear.
3. I always establish in my own mind that the meeting is cost-effective.	12345	I very rarely attempt to establish whether my meeting are cost-effective.
4. I always try to keep my meetings to the minimum number of relevant people.	12345	Probably my meetings have too many people and not all those people are necessarily relevant.
5. I spend time thinking carefully about my agenda and I always publish it in advance.	12345	I rarely publish an agenda and, when I do, it is probably weak and sketchy.
6. Normally people are well prepared for my meetings.	12345	I always have the common complaint that people are not well prepared for my meetings.
7. I always publish the finish time and allocate time properly to each agenda item.	12345	I rarely publish a finish time and my time management could probably be improved fairly substantially.
8. I am very conscious of the need for good chairmanship and I actively try to improve my skills.	12345	I am afraid that my chairmanship is haphazard.
9. At the end of each meeting I allocate time to summarising, and ensure that all actions are accountable.	12345	I often end a meeting without ensuring that actions are clearly accountable.
10. I always try to ensure that meetings where I am not chair are properly managed.	12345	Other people’s meetings are their responsibility.

If you selected lower numbers, you have very firmly grasped that meetings need to be effectively managed and you are always conscious of the need to ensure good performance. Higher numbers need attention – your meetings will be low in effectiveness and not particularly productive for you or the participants. A consistent choice of number five means that you are wasting your time and everybody else’s time in your meetings. Almost certainly the output of your meetings is very erratic.

Successful business meetings, they say, are the life blood of any executive’s career. Hence arranging a conference is as important as the meeting itself. Here, we present some of the important things to keep in mind while preparing for such events.

Subject:
Conferences can be of several kinds. The secret behind organising a successful conference is to first understand what it is meant to achieve and then to chart out a proper agenda for it. This may require several internal meetings, followed by meetings with outsiders like tour organisers, hotels and travel agents.

Exhibitions and Trade Shows:
Some conferences may involve exhibitions or trade shows. In such cases, you must ensure that the venue is large enough to hold the exhibition and that there is sufficient space for closed-door or open-forum meetings.

Technology:
Conferences often need extensive tech support for success. Video conferencing plays a vital role in several conferences, while some meetings can make do with audio conferencing facilities only. Whatever the case, proper arrangements must be made in advance. Wi-fi-enabled boardrooms, touch screens, centrally-monitored projectors and screens, lights, laptops, the works, they are all required, and so, should be planned for in advance.

Incentives:
Perhaps one of the easiest ways of incentivizing employees while making them work is to organize a business conference for them in exotic locales; in other words, allowing them to mix pleasure with business. For most of these meetings, one needs to decide whether or not to include executives’ spouses and families. Also, the number of people or the strength of the group needs to be ascertained and a budget worked out. This will determine the possible destinations where the meeting can be held.

Location:
Depending on how much you are willing to invest in your conference, you could look at either having it in your office auditorium (if it has one), at a local conference centre, five-star hotel or take that extra step to arrange for an outstation trip in India or abroad. If you do decide to travel out of station, you must research the destination thoroughly and plan out any conducted tours that may want to offer the delegates; also draw up a list of good eating joints and shopping venues at these places. These are several travel agencies that take charge of all your requirements.

Transportation:
In case you need to add that zing to the usually dull round table conference, you must also ensure that your business partners/executives find it easy to not just get to the venue, but get there on time. The best idea would be to arrange for transport for everyone so that the entire group assembles at one common point, and you can take them to the venue. This way, you could also throw in a surprise element of an undisclosed conference venue!

Once you know the venue, it is of prime importance that your business delegates have a comfortable stay and take home memories of not just hectic business meetings but also of a time well spent. Zeroing in on the right accommodation facilities and venues helps you make the trip memorable. A word of caution: in case you are planning to hold your meeting in some place faraway, pay special attention to the menu, particularly if you have people who want only a particular kind of diet! Not everyone on your team might be game having roasted crocodile for dinner.

Conducting And Participating In Meetings:
Meetings involve oral communication. In a meeting you may be either a leader or a participant. As a leader you are required to conduct the meeting. There are certain rules of conducting meetings (called parliamentary procedure). You should know and follow these rules while conducting a meeting. In addition, you should take the following steps:
1. Plan the meeting: A meeting requires thorough preparation. First, develop an agenda (a list of topics to be discussed) to achieve the goals of the meeting. The items in the agenda should be arranged in the most logical order. After preparing the agenda, make it available to all those who are to attend the meeting.

2. Follow the Agenda: Follow the agenda item by item. In most meetings, the discussion tends to stray and new items come up. Keep the discussion on track In case new items arise during the meeting, take them up at the end or postpone them for a future meeting.

3. Move the Discussion Along: Once an item is covered, bring up the next one. Do what is necessary to proceed through the agenda. However, you should not cut off discussion before all important points have been made. The goal should be to permit complete discussion on the one hand and to avoid repetition and useless comments on the other.

4. Control those who talk too much: In most meetings, a few persons tend to dominate the discussion. The leader’s task is to control them. You should step in when they begin to astray or bring in useless matter. You can do so tactfully by asking for other viewpoints or moving on to the next topic.

5. Encourage Everyone to take part: Bring those who talk too little into the discussion. You can do this by asking for their viewpoints and showing respect for their comments.

6. Control Time: When your meeting time is limited, decide in advance how much time will be given to each item. Then at the right time, you should end discussion of each item. You may announce time, goals in the beginning of the meeting and remind the participants time status throughout the meeting.

7. Summarize at Appropriate Times: As a leader, you should summarise comments and conclusions made on each item at appropriate times.

Participating in Meetings:
As a participant in a meeting, you should do the following:
1. Follow the agenda: You should not bring up items not on the agenda. Also avoid commenting on such items brought up by other participants.

2. Participate: Everybody present should meaningfully participate in the discussion. You should talk whenever you have something to contribute.

3. Do not Talk too much: Avoid talking too much and getting carried away. Always respect the rights of others.

4. Cooperate: By its very nature, a meeting requires cooperation from all the participants. Therefore, you should work with others in every possible way.

5. Be Courteous: As a participant you should be courteous to others. You should respect their opinions and permit them to speak

Etiquette In Meetings:
While attending a meeting good manners such as the following need to be followed:

• Be punctual for the meeting.
• Seek permission from the chairman before speaking.
• Stand up before you start speaking.
• Address your comments to the chairperson.
• Stick to the issue and do not bring up issues not listed in the agenda.
• Be brief and to the point.
• Don’t interrupt others when they are speaking.
• Be polite or courteous in your language and body movements.
• In case you want to discuss anything outside the agenda, take up in any other matter at the last with the chairman’s permission.

This Companies Act, 2013 – CA Foundation Law Study Material is designed strictly as per the latest syllabus and exam pattern.

Companies Act, 2013 – CA Foundation Business Law Study Material

Question 1.
What is meant by the lifting of the corporate veil? What are the instances in which the corporate veil may be lifted?
OR
There are cases where company law disregards the principle of corporate personality or the principle that the company is a legal entity distinct from its shareholders or members. Elucidate.
Answer:
‘Lifting the veil’ means looking behind the company as a legal person ie., disregarding the corporate entity and paying regard instead to the realities behind the legal form. Where the courts ignore the corporate personality and concern themselves directly with the members or directors, the corporate veil may be said to have been lifted.

The following are the cases where company law disregards the principle of corporate personality or the principle that the company is a legal entity distinct and separate from its shareholders or members:

1. To determine the character of the company i.e. to find out whether the company is an enemy or a friend:
The Court may rend the veil for ascertaining whether a company is an enemy company. Unlike a natural person, a company does not have a mind or conscience; therefore, it cannot be a friend or foe. It may, however, be characterized as an enemy company, if its affairs are under the control of the people of an enemy country. For this purpose, the Court may examine the character of the persons who are really at the helm of affairs of the company, which was done in the leading case of Daimler Co. Ltd. vs. Continental Tyre & Rubber Co. Ltd.

2. Company is formed to evade taxes:
Where a corporate entity is used to evade or circumvent tax, the Court can disregard the corporate entity [Juggilal v. Commissioner of Income Tax AIR (SC)].
19.3
Thus where the company is used as a means of evasion of taxes, then for protection of revenue of the Government, the corporate veil may be lifted. [Sir Dinshaw Maneckjee Petit, Re AIR 1927 Bom. 371].

3. Company is formed to avoid a legal obligation/welfare legislation:
Where the sole purpose for the formation of the company was to use it as a device to reduce the amount to be paid by way of bonus to workmen, the Supreme Court upheld the piercing of the veil to look at the real transaction (The Workmen Employed in Associated Rubber Industries Limited, Bhavnagar v. The Associated Rubber Industries Ltd., Bhavnagar and another).

4. Formation of subsidiaries to act as agents:
A company may sometimes be regarded as an agent or trustee of its members, or of another company, and may therefore be deemed to have lost its individuality in favor of its principal & the disqualifications of the principal shall be treated as that of the agent. Here the principal will be held liable for the acts of that company, as was held in the case of Merchandise Transport Limited v. British Transport Commission (1982).

5. Company formed for fraud/improper conduct or to defeat law:
The corporate veil may be lifted if the company is formed to – (a) defeat the law; (b) defraud creditors; (c) avoid legal obligations (arising by way of a contract). Where the device of incorporation is adopted for some illegal or improper purpose, e.g., to defeat or circumvent the law, to defraud creditors, or to avoid legal obligations. [Gilford Motor Co. v. Horne & Jones v. Lipman]

6. To determine the technical competence of the company:
A company is an artificial entity and therefore it cannot be judged for competence and experience. In some cases where the technical compe¬tence of the company is to be ascertained, such as to determine the eligibility of the company for a certain contract, then the experience, qualification, and competence of the members shall be treated as that of the company. Thus corporate veil shall be lifted as was done in the case of New Hori¬zons Ltd. v. UOI (1997).

Question 2.
Define OPC and state the rules regarding its membership. Can it be converted into a non-profit company under section 8 or a private company?
Answer:
One person company
Section 2(62) of the Companies Act, 2013 defines one person company (OPC) as a company that has only one person as a member. The following are the rules regarding membership of OPC:

1. There can be only one person as a member of OPC.
2. The memorandum of OPC shall indicate the name of the other person, who shall, in the event of the subscriber’s death or his incapacity to contract, become a member of the company.
3. The other person whose name is given in the memorandum shall give his prior written consent in the prescribed form and the same shall be hied with the Registrar of companies at the time of incorporation.
4. Such other person may be given the right to withdraw his consent.
5. The member of OPC may at any time change the name of such other person by giving notice to the company and the company shall intimate the same to the Registrar.
6. Any such change in the name of the person shall not be deemed to be an alteration of the memorandum.
7. Only a natural person who is an Indian citizen and resident in India (person who has stayed in India for a period of not less than 182 days during the immediately preceding one calendar year)—

• shall be eligible to incorporate an OPC;
• shall be a nominee for the sole member of an OPC.

8. No person shall be eligible to incorporate more than one OPC or become a nominee in more than one such company.
9. No minor shall become a member or nominee of the OPC or can hold share with beneficial interest.

OPC cannot be incorporated or converted into a company under section 8 of the Act. However, it may be converted into a private or public company. OPC cannot voluntarily convert itself into any kind of company unless two years have expired from the date of incorporation, except where the paid-up share capital is increased beyond fifty lakh rupees or its average annual turnover during the relevant period exceed two crore rupees.

Question 3.
State the limitations of the Doctrine of Indoor Management under the Companies Act, 2013.
Answer:
The Doctrine of Indoor Management or Turquand Rule has limitations of its own. That is to say, it is inapplicable to the following cases, namely:

a. Actual or constructive knowledge of irregularity
The rule does not protect any person when the person dealing with the company has notice, whether actual or constructive, of the irregularity. [Howard vs. Patent Ivory Manufacturing Co.]

b. Suspicion of Irregularity/Negligence
The doctrine is not applicable in the case of negligent persons. If an officer of the company acts in a manner, which would not ordinarily be within his powers, the person dealing with him must make proper inquiries and satisfy himself as to the officer’s authority. If he fails to make an inquiry, he cannot rely on the rule. Where the transaction is unusual or not in the ordinary course of business, it is the duty of the outsider to make the necessary inquiry. The protection of the ‘‘Turquand Rule” is also not available where the circumstances surrounding the contract are suspicious and therefore invite inquiry. [Anand Bihari Lai vs. Dinshaw & Co.]

c. Forgery
The doctrine of indoor management applies only to irregularities that might otherwise affect a transaction but it cannot apply to forgery which must be regarded as a nullity. Forgery may in circumstances exclude the ‘Turquand Rule’. [Ruben vs. Great Fingall Consolidated]

Question 4.
Explain the meaning of Guarantee Company? State the similarities & dissimilarities, between a Guarantee Company & Company Limited by Share.
Answer:
“Company limited by guarantee” means a company having the liability of its members limited by the memorandum, to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up.

These companies may or may not have a share capital In the case of a guarantee company with a share capital, the members are required to purchase shares of a fixed amount and also give a guarantee for a further sum in the event of winding up. Generally, guarantee companies are formed for non-trading purposes. Such as promotion of commerce, art, science, sports, etc., and do not aim for profit. The Chambers of Commerce, charitable institutions, sports clubs, are generally organized as guarantee companies.

The common features between a ‘guarantee company’ and ‘the company having share capital’ are legal personality and limited liability. In the latter case, the member’s liability is limited by the amount remaining unpaid on the share, which each member holds. Both of them have to state in their memorandum that the members’ liability is limited.

POINTS OF DISTINCTION	COMPANY LIMITED BY SHARES	COMPANY LIMITED BY GUARANTEE
Purpose:	Profit/non-profit both.	Generally not for profit.
Usefulness:	When initial funds are required to be raised to commence business.	Only where no working funds are needed or where these funds can be held from other sources like endowment, fees, charges, donations, etc.
Transfer of interest	May not be restricted.	Restricted & different than that of those limited by shares
Liability of members	Limited to amount unpaid on shares.	Limited to amount guaranteed.
Amount Called	Unpaid amount on shares may be called even before winding up.	Amount guaranteed can be called only on winding up. If company has a share capital, unpaid amount on shares can be called before winding up.
Share capital	Must have share capital	May or may not have share capital
To start	Raises initial funds from, members	Does not raise initial funds from members, unless it has a share capital.

Question 5.
When a company is registered, it is clothed with a legal personality. Explain.
OR
What is the meaning of “Certificate of Incorporation” under the provisions of the Companies Act, 2013? What are the effects of the registration of a company?
Answer:
A company can be incorporated by complying with the formalities prescribed u/s 7 of the Companies Act, 2013. Application in the prescribed form must be made, along with the documents prescribed for this purpose and fees, to the Registrar within whose jurisdiction, the registered office of the company is proposed to be situated. The Registrar on being duly satisfied as to the compliance of all the requirements, relating to the incorporation of a company, as prescribed under the Companies Act, 2013 and the rules made thereunder, shall register all the documents and information in the register and issue a certificate of incorporation in the prescribed form to the effect that the proposed company is incorporated under this Act. The certificate of incorporation shall also indicate the unique identity number allotted to the company le. the Corporate Identity Number, which shall be a distinct identity for the company.

When a company is registered and a certificate of incorporation is issued by the Registrar, the following important consequences follow:

1. The company becomes a distinct legal entity. Its life commences from the date mentioned in the certificate of incorporation.
2. It becomes a body corporate and it acquires a perpetual succession.
3. It is capable of suing and being sued in its corporate name.
4. Its property is not the property of the shareholders. The shareholders have a right to share in the profits of the company when realized and divided. Likewise, any liability of the company is not the liability of individual shareholders.

From the date of incorporation mentioned in the certificate, the company becomes a legal person separate from the incorporators; and there comes into existence a binding contract between the company and its members as evidenced by the Memorandum and Articles of Association. It has perpetual existence until it is dissolved by liquidation or struck out of the register.

A legal personality emerges from the moment of registration of a company and from that moment the persons subscribing to the Memorandum of Association and other persons joining as members are regarded as a body corporate or a corporation in aggregate and the legal person begins to function as an entity. A company on registration acquires a separate existence and the law recognizes it as a legal person separate and distinct from its members.

Question 6.
Define a Small Company as defined under the Companies Act, 2013.
Answer:
Small Company: Small company given under section 2(85) of the Companies Act, 2013 which means a company, other than a public company—
1. paid-up share capital of which does not exceed fifty lakh rupees or such higher amount as may be prescribed which shall not be more than five crore rupees; and

2. turnover of which as per its last profit and loss account does not exceed two crore rupees or such higher amount as may be prescribed which shall not be more than twenty crore rupees:
Exceptions: This section shall not apply to:

• a holding company or a subsidiary company;
• a company registered under section 8; or
• a company or body corporate governed by any special Act.

Question 7.
Explain the concept of Dormant company as envisaged in the Companies Act, 2013.
Answer:
Where a company is formed and registered under this Act for a future project or to hold an asset or intellectual property and has no significant accounting transaction, such a company or an inactive company may make an application to the Registrar in such manner as may be prescribed for obtaining the status of a dormant company.
“Inactive company” means a company that has not been carrying on any business or operation, or has not made any significant accounting transaction during the last two financial years, or has not filed financial statements and annual returns during the last two financial years.
“Significant accounting transaction” means any transaction other than

• payment of fees by a company to the Registrar;
• payments made by it to full the requirements of this Act or any other law;
• allotment of shares to full the requirements of this Act; and
• payments for maintenance of its office and records.

Question 8.
Differentiate between the Memorandum of Association & Articles of Association.
Answer:

	MOA	AOA
Power	is the charter and constitution of the company.	The articles are subordinate to the memorandum. If there is a conflict between the two, the memorandum shall prevail.
Ultra vires	Acts done by a company beyond the scope of the memorandum are absolutely void (ineffective). They cannot be ratified even by the unanimous vote of all the shareholders.	Articles of association govern the internal relationship between the company and its members, Ac Is done the company beyond its Articles can be ratified by the shareholders.
Registration	Every company must have its own memorandum. It must be compulsorily filed for registration. It must be in the following forms: Model: A, B, C, D, E of Schedule I	Every company must have its own Articles. ¡t must be compulsorily filed for registration. It must be in the following forms: Model: F, G, H, 1, J of Schedule I
Alteration	MOA cannot be altered easily.	AOA can be altered if it is desired by the 3/4th majority.
Nature	Memorandum of association contains the basic conditions on which the company is incorporated. It provides for the name, situation objects, capital, and liability of the company.	Articles of association are the rules governing the internal management of the company. It provides for rules and procedures for the conduct of its business.
Scope	It determines the objects, scope, and extent of the activities of the company.	It governs the way in which the objects of the company are to be carried out.

Question 9.
State whether a non-profit organization can be registered as a company under the Companies Act, 2013. If so, what procedure does it have to adopt?
Answer:
Formation of companies with charitable objects etc. (Section 8 company)
Section 8 of the Companies Act, 2013 deals with the formation of companies which are formed to

• Promote the charitable objects of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of the environment, etc.
• Such company intends to apply its profit in promoting its objects and
• Prohibiting the payment of any dividend to its members.

Examples of section 8 companies are FICCI, ASSOCHAM, National Sports Club of India, CD, etc.

Power of Central Government to issue the license—

• Section 8 allows the Central Government to register such person or association of persons as a company with limited liability without the addition of words ‘Limited’ or ‘Private Limited’ to its name, by issuing license on such conditions as it deems fit.
• The Registrar shall on application register such person or association of persons as a company under this section.
• On registration, the company shall enjoy the same privileges and obligations as of a limited company.

Note: Central Government has delegated the power to grant licenses to the ROC.

Question 10.
Examine with reasons whether the following statements are correct or incorrect with reasons:

1. A private company must have a minimum of two members while a public company must have a minimum of seven members
2. Affixing of Common Seal on the company’s documents is compulsory.
3. A company being an artificial person cannot own property & cannot sue or be sued

Answer:
(1) Correct. According to the provisions of section 3 of the Companies Act, 2013, which deals with the basic provisions for incorporation of a company, in the case of the public company a minimum of 7 persons is required to form a company to carry on the purpose as illustrated in the MOA of the company, by subscribing their name to the MOA. Similarly, a minimum of 2 persons is required to form a private company.

(2) Incorrect. As per the Companies (Amendment) Act, 2015, the common seal has been made optional by omitting the words “and a common seal” from Section 9 of the Act, with a view to providing an alternative authorization for the purpose of creation of contract by a company. This amendment provides that in case a company does not have a common seal, the authentication shall be made by any key managerial personnel or an officer or employee of the company, duly authorized by the Board on this behalf.

(3) Incorrect: A company is an artificial person and has a separate legal entity independent of its members. As a consequence, a company can enter into contracts in its own name, acquire and transfer/sell property in its own name and can also sue and be sued in its own name.

Question 11.
What is meant by Doctrine of Constructive Notice?
Answer:
Section 399 provides that the memorandum and articles when registered with the Registrar of Companies ‘become public documents’ and then they can be inspected by anyone on payment of a nominal fee. Therefore, any person who contemplates entering into a contract with the company has the means of ascertaining the powers of the company and is thus, presumed to have read these documents and understood them in their true perspective. This is known as the “doctrine of constructive notice”.

Even if the party dealing with the company does not have actual notice of the contents of these documents it is presumed that he has an implied (constructive) notice of them. Consequently, if a person enters into a contract which is beyond the powers of the company, as defined in the memorandum, or outside the limit set on the authority of the directors as per the memorandum or articles, he cannot, as a general rule, acquire any rights under the contract against the company.

By constructive notice is meant

• Whether a person reads the documents or not, he is presumed to have knowledge of the contents of the documents. He is not only presumed to have read the documents but also understood them in their true perspective, and
• Every person dealing with the company not only has the constructive notice of the memorandum and articles but also of all the other related documents, such as Special Resolutions, etc., which are required to be registered with the Registrar.

Thus, if a person enters into a contract that is beyond the powers of the company as defined in the memorandum, or outside the authority of directors as per memorandum or articles, he cannot acquire any rights under the contract against the company.

Question 12.
Briefly explain the doctrine of ‘ultra vires’ under the Companies Act, 2013. What are the consequences of ultra vires acts of the company?
Answer:
The meaning of the term ultra vires is simply “beyond (their) powers”. The legal phrase “ultra vires” is applicable only to acts done in excess of the legal powers of the doers. This presupposes that the powers in their nature are limited.
It is a fundamental rule of Company Law that the objects of a company as stated in its memorandum can be departed from only to the extent permitted by the Act, thus far and no further. In consequence, any act done or a contract made by the company which travels beyond the powers not only of the directors but also of the company is wholly void and inoperative in law and is therefore not binding on the company.

The impact of the doctrine of ultra vires is that a company can neither be sued on an ultra vires transaction nor can it sue on it. Since the memorandum is a “public document”, it is open to public inspection. Therefore, when one deals with a company one is deemed to know about the powers of the company. If in spite of this if a person enters into a transaction that is ultra vires the company, he cannot enforce it against the company.

Further, an act that is ultra vires the company being void, cannot be ratified by the shareholders of the company. The leading case through which this doctrine was enunciated is that of Ashbury Railway Carriage and Iron Company Limited v. Riche (1875).
The following are the consequences of an ultra vires act of the company:

• An act ultra vires the company is null and void and thus wholly inopera¬tive. Neither the company can sue nor be sued against on such a contract made for an ultra vires act.
• An act that is ultra vires the company cannot be ratified even by the unanimous consent of all the shareholders.
• An act that is ultra vires the company cannot become ultra vires’ by reason of estoppel, acquiescence, the lapse of time, delay, or ratification.
• The directors shall be held personally liable to the third parties who contracted for an ultra vires transaction on behalf of the company.

Question 13.
What is meant by the entrenchment of provisions in the Articles of Association?
Answer:
The articles may contain provisions for entrenchment (to protect something) to the effect that specified provisions of the articles may be altered only if conditions or procedures that are more restrictive than those applicable in the case of a special resolution, are met or complied with.

The provisions for entrenchment shall only be made either on the formation of a company or by an amendment in the articles agreed to by all the members of the company in the case of a private company and by a special resolution in the case of a public company.

Where the articles contain provisions for entrenchment, whether made on the formation or by amendment, the company shall give notice to the Registrar of such provisions in such form and manner as may be prescribed.

Question 14.
What do you mean by ‘Companies with charitable purpose’ (Section 8) under the Companies Act, 2013? Mention the conditions of the issue & revocation of the license of such company by the Government.
Answer:
“Companies with Charitable Objects” (Section 8) refers to the companies incorporated for a purpose other than earning profits. Such companies which carry on activities other than those of a commercial nature can be incorporated after obtaining a license u/s 8.
The Central Government issues a license for incorporation of a company under section 8 if it is duly satisfied that

• the proposed company is being incorporated to promote the charitable objects of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of the environment, etc.
• such a company intends to apply its profits in promoting its objects only &
• company prohibits the payment of any dividend to its members.

The Central Government may by order revoke the license of the company:

• where the company contravenes any of the requirements of the conditions of section 8, subject to which the license is issued or
• where the affairs of the company are conducted fraudulently, or
• where the affairs of the company are conducted in a manner that is violative of the objects, or
• in a manner prejudicial to the public interest.

Before such revocation, the Central Government must give notice of its intention to revoke the license to the company and must also award the company, a reasonable opportunity of being heard.

Question 15.
The Articles of Association of XYZ Ltd. provides that the Board of Directors has the authority to issue bonds provided such issue is authorized by the shareholders by a necessary resolution in the general meeting of the company. The company was in dire need of funds & therefore it issued the bonds to Mr. X without passing any such resolution in the general meeting. Can Mr. X recover the money from the company? Decide, referring to the relevant provisions of the Companies Act, 2013. (C.A. Foundation RTP May 2018)
Answer:
As per the provisions of The Doctrine of Indoor Management, if an act is authorized by the AOA/MOA, then the outsider dealing with the company, is entitled to assume that all the formalities concerned with the act in question, have been complied with by the company in a regular manner, provided he has knowledge of the formalities mentioned in the MOA/AO A. Thus if the outsider has knowledge of the contents of these public documents and has understood them in their true perspective, then doctrine offers protection to the outsider and allows him to enforce the said contract against the company.

The facts of the case are similar to the leading case, of The Royal British Bank v. Turquand, where the directors of RRB Ltd. issued a bond to Turquand. The AOA empowered the directors to issue such bonds under the authority of a proper resolution. In fact, no such resolution was passed. Notwithstanding that, it was held that T could sue on the presumption of Doctrine of Indoor Management. Thus it can be concluded applying the above provisions and the ruling of the leading case, that Mr. X can recover the money from the company, assuming that all the required formalities for passing the resolution have duly complied.

Question 16.
Krishna, an assessee, was a wealthy man earning huge income by way of dividends and interest. He formed three private companies and agreed with each to hold a block of investment as an agent for them. The dividend and interest income received by the companies was handed back to Krishna as a pretended loan. This way Krishna divided his income into three parts in a bid to reduce his tax liability. Decide for what purpose the three companies were established? Whether the legal personality of the three companies may be disregarded?
Answer:
A company on being incorporated acquires a separate legal existence. Its existence is distinct and separate from its members. This principle of a separate legal entity may be referred to as the veil of incorporation. Generally, the law does not disregard this ‘corporate veil’ and does not concern itself directly with the members of the directors of the company. However, in certain exceptional cases, the law shall disregard the corporate entity and pay regard to the realities behind the legal facade, in order to render justice. One of the circumstances where the corporate veil is lifted is for the protection of revenue of the Government. Thus where the corporate entity is being used as a means of evasion of taxes there the corporate veil shall be lifted.

In the given case, Krishna an assessee earning huge dividend and interest income, formed three private companies and agreed to hold the investments as an agent, and received back the dividend & interest income as a pretended loan, with the intention to reduce his taxation liability.
Thus it is evident that the three private companies have been incorporated to merely serve as a means for evading taxes by Krishna & the corporate veil shall be lifted and the separate entity shall be disregarded. The dividend and interest income shall be deemed to be that of Krishna and he shall be liable to pay tax on the same, as was held in the leading case of Sir Dinshaw Maneckjee Petit.

Question 17.
Ravi Private Limited has borrowed t 5 crores from Mudra Finance Ltd. This debt is ultra vires to the company. Examine whether the company is liable to pay this debt? State the remedy if any available to Mudra Finance Ltd.
Answer:
A company cannot depart from the provisions contained in its M.O.A., however imperative may be the departure. It cannot enter into a contract that is beyond the power confessed on it by the M.O.A. If it does so, the contract shall be regarded as ultra vires and therefore void ab initio. The impact of an ultra vires transaction is that neither the company nor the third party has a right to sue on it. Since the memorandum is a public document by virtue of its being filed with the R.O.C., the parties who come to contract with the company, are deemed to have a knowledge of the contents of the M.O.A. If in spite of this the person enters into an ultra vires transaction, he cannot enforce the same against the company. Further money has been advanced to a company, in an ultra vires transaction, generally, it cannot be recovered by the lender. However, if the company has not yet expended the money then the company can be stopped from parting with the same by means of a suit for injunction and the lender shall be entitled to take back the same in species.

In the given case Ravi Private Limited has borrowed ₹ 5 crores from Mudra Finance Ltd. which is ultra vires, which implies that Ravi Pvt. Ltd. has borrowed the amount beyond the limit prescribed in the M.O.A. of the company. Applying the above-stated effect of the doctrine of ultra vires, it can be concluded that since the act of Ravi Pvt. Ltd. is ultra vires the company, the transaction shall be treated as void ab initio. However the lender i.e., Mudra Finance Ltd. shall be entitled to stop Ravi Pvt. Ltd. from parting with the money lent and take back the property in species.

Question 18.
ABC Pvt. Ltd., is a Private Company having five members only. All the members of the company were going by car to Mumbai in relation to some business. An accident took place and all of them died. Answer with reasons, under the Companies Act, 2013 whether the existence of the company has also come to the end?
Answer:
The company on its incorporation enjoys perpetual succession on account of its separate legal entity. The members may come and go but the company shall continue to be in existence forever until the company is legally wound up. Further, since the shares are transferable, in the event of the death of the members, the shares shall be transmitted to their legal representatives. Thus the company, ABC Pvt. Ltd. shall continue to be in existence, in spite of the death of its members in the given case.

Question 19.
The paid-up Share Capital of AVS Private Limited is ₹ 1 crore, consisting of 8 lacs Equity Shares of ₹ 10 each, fully paid-up and 2 lacs Cumulative Preference Shares of ₹ 10 each, fully paid-up. XYZ Private Limited and BCL Private Limited are holding 3 lacs Equity Shares and 1,50,000 Equity Shares respectively in AVS Private Limited. XYZ Private Limited and BCL Private Limited are the subsidiaries of TSR Private Limited. With reference to the provisions of the Companies Act, 2013, examine whether AVS Private Limited is a subsidiary of TSR Private Limited? Would your answer be different if TSR Private Limited has 8 out of a total of 10 directors on the Board of Directors of AVS Private Limited?
Answer:
Section 2(87) defines “subsidiary company” in relation to any other company (that is to say the holding company), means a company in which the holding company:

• controls the composition of the Board of Directors; or
• exercises or controls more than one-half of the total share capital either at its own or together with one or more of its subsidiary companies:

For the purposes of this section:

• a company shall be deemed to be a subsidiary company of the holding company even if the control referred to in sub-clause (z) or sub-clause
• is of another subsidiary company of the holding company;
• the composition of a company’s Board of Directors shall be deemed to be controlled by another company if that other company by exercise of some power exercisable by it at its discretion can appoint or remove all or a majority of the directors;

Further the term “Total Share Capital”, means the aggregate of the:

• Paid-up equity share capital; and
• Convertible preference share capital. Thus applying the above-stated provisions, in both the above cases, AVS Pvt. Ltd. will be the subsidiary of TSR Pvt. Ltd. Total share capital of AVS Pvt. Ltd. is 8,00,000 shares out of which TSR Pvt. Ltd. is holding 4,50,000 shares through its subsidiaries.

Question 20.
The Articles of a company required that all deeds etc. should be signed by the M.D., the Secretary, and an Executive Director on behalf of the company. A deed of mortgage was signed by the Managing Director on behalf of the company in favor of Z. Can it be a valid deed?
Answer:
Hint: Doctrine of constructive Notice; The Articles require the deed to be signed by 3 persons. Z should have consulted the Articles of Association of the company to ascertain the authority of signing the deed. Even if, the M.D. has signed it in good faith, the deed is still not valid. Z can’t claim on the basis of the deed. The concept is that since the Articles is a public document, on being filed with the ROC, Z is presumed to have known its provisions. This principle was laid in Kotla Venkateswami v. Ramamurthy AIR 1934 Mad 579.

Question 21.
The Object Clause of Memorandum of Association of ABC Pvt. Ltd. Authorized the company to carry on the business of trading in Fruits and Vegetables. The Directors of the company in recently concluded Board Meeting decided and accordingly, the company ordered for fish for the purpose of trading. FSH Limited supplied fish to ABC Pvt. Ltd. Worth ₹ 36 lakhs. The members of the company convened an extraordinary general meeting and negated the proposal of the Board of Directors on the ground of ultra vires acts. FSH Limited being aggrieved of the said decision of ABC Pvt. Ltd. seeks your advice. Advise them.
Answer:
Hint:- Doctrine of ultra vires’, Company being an artificial person can enter into those contracts as are warranted by terms of the object clause of its MOA. A company can depart from the objects stated in MOA only to the extent permitted by the Act, thus far and no further. Thus any act done or any contract made by the company which travels beyond the powers not only of the directors but also of the company is wholly void inoperative and is therefore not binding on the company.

In the given case the object clause of MOA of ABC Pvt. Ltd. authorizes to carry on the business of trading in fruits & vegetables only, whereas the company enters into a contract with FSH Ltd. for the purchase of fish worth ₹ 36 lakhs. Thus the contract is ultra vires the company and shall not be binding on the company. Further ratification of ultra vires transactions cannot be done even by the whole body of shareholders. Thus FSH Ltd. has no remedy against the company. It can hold the directors of ABC Pvt. Ltd. personally liable.

Question 22.
FAREB Limited was incorporated by the acquisition of Fareb & Co., a partnership firm, which was earlier involved in many illegal activities. The promoters furnished some false information and also suppressed some material facts at the time of incorporation of the company. Some members of the public (not being directors or promoters of the company) approached the National Company Law Tribunal (NCLT) against the incorporation status of FAREB Limited. NCLT is about to pass the order by directing that the liability of the members of the company shall be unlimited.
Given the above, advise on whether the above order will be legal and mention the precaution to be taken by NCLT before passing the order in respect of the above as per the provisions of the Companies Act, 2013.
Answer:
Hint According to the provisions of Section 7(7) of the Companies Act, 2013, where a company has been got incorporated by furnishing false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company or by any fraudulent action, the Tribunal may, on an application made to it, on being satisfied that the situation so warrants,

• pass such orders, as it may think fit, for regulation of the management of the company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or
• direct that liability of the members shall be unlimited; or
• direct removal of the name of the company from the register of companies; or
• pass an order for the winding-up of the company; or
• pass such other orders as it may deem fit.

Provided that before making any order:

• the company shall be given a reasonable opportunity of being heard in the matter; and
• the Tribunal shall take into consideration the transactions entered into by the company, including the obligations, if any, contracted or payment of any liability.

Further where it is proved that a company has been incorporated as aforesaid, then the promoters, the persons named as the first directors, and the persons making a declaration at the time of incorporation of the company shall each be .liable for action for fraud under section 447.
In the given case, the decision of NCLT to direct that the liability of the members of FAREB Ltd. shall be unlimited is legally valid as per the above-stated provisions. However, before passing any such direction, NCLT shall grant FAREB Ltd., the opportunity of being heard and shall take into consideration the transactions entered into by company, including the obligations if any contracted or payment of any liability.

Question 23.
A company registered under Section 8 of the Companies Act, 2013, earned huge profits during the financial year ended on 31st March 2018 due to some favorable policies declared by the Government of India and implemented by the company. Considering the development, some members of the company wanted the company to distribute dividends to the members of the company. They approached you to advise them about the maximum amount of dividend that can be declared by the company as per the provisions of the Companies Act, 2013. Examine the relevant provisions of the Companies Act, 2013, and advise the members accordingly.
Answer:
According to provisions of section 8 of the Companies Act, 2013, a company can be incorporated for not-for-profit purposes under a license from Central Government provided the following conditions have complied

• The company is formed to promote the charitable objects of commerce, art, science, sports, education, research, social welfare, religion, charity protection of the environment, etc.
• Such a company intends to apply its profits/surplus in the promotion of its objects and
• The payment of dividends to its members is prohibited.

In the given case the member of a Section 8 company is desirous that the company should distribute dividends out of the huge profits earned by the company, among its members.

Thus applying the above-stated provisions it is evident that distribution of dividends is prohibited and therefore the claim of the members is not tenable.

Question 24.
Mr. X had purchased some goods from M/s. ABC Limited on credit. A credit period of one month was allowed to Mr. X. Before the due date Mr. X went to the company and wanted to repay the amount due from him. He found only Mr. Z there, who was the factory supervisor of the company, Mr. Z told Mr. X that the accountant and the cashier were on leave, he is in¬charge of receiving money and he may pay the amount to him. Mr. Z issued a money receipt under his signature.

After two months M/s. ABC Limited issued a notice to Mr. X for non-payment of the dues within the stipulated period. Mr. X informed the company that he had already cleared the dues and he is no more responsible for the same. He also contended that Mr. Z is an employee of the company to whom he had made the payment and being an outsider, he trusted the words of Mr. Z as duty distribution is a job of the internal management of the company. Analyze the situation and decide whether Mr. X is free from his liability.
Answer:
The Doctrine of Indoor Management is an exception to the Doctrine of Constructive Notice. An outsider who has read the public documents (MOA & AOA) containing the powers of the company and the extent to which they have been delegated to its officers and understood them in their true perspective, can assume that the internal operations and management of the company have been performed regularly, in respect of the contract that he is desirous of entering into with the company. However, there are certain limitations to this doctrine.

One of the exceptions to the Doctrine of Indoor management is knowledge/ suspicion of irregularity. The protection under the doctrine does not extend to those persons who have behaved negligently. Thus when the circumstances are such which invite inquiry & for example when an officer of the company is purporting to act in a matter, which is apparently outside the usual scope of his authority, then the outsides are under a duty to make the necessary inquiry. If the outsider fails to make an inquiry as such then he cannot seek protection under the Doctrine of Indoor Management and the company shall not be bound by the transaction. This was also held in the case of Anand Behari Lai v. Dinshaw & Co.

In the given case Mr. X makes the payment to Mr. Z the factory supervisor. The act of receiving money on behalf of the company falls beyond the apparent authority of a factory supervisor. The nature of the transaction was such which required Mr. X to enquire as to Mr. Z’s authority.

Thus applying the above-stated provisions it can be concluded that Mr. X is not free from his liability towards the company as he failed to enquire about Mr. Z’s authority despite the suspicious circumstances. members in the company as noted below:

• Directors and their relatives                                                                     190
• Employees                                                                                                15
• Ex-Employees (Shares were allotted when they were employees)           10
• 5 couples holding shares jointly in the name of husband and wife (5*2) 10
• Others                                                                                                        5

The board of Directors of the company proposes to convert it into a private company. Also, advise whether the reduction in the number of members is necessary.
Answer:
Hint: Provisions of section 2(68) of Companies Act, 2013. Definition of a private company. In Computing the number of members joint shareholders are treated as a single member. Further, the number of present employees & past employees who continue to be members even after termination of employment shall not be included in the number of members.

In the given case Flora Fauna Limited can be converted into a private company provided the restrictions of a private company are incorporated in the area of the company and due procedure for conversion, under the Act is duly complied with. Further Flora Fauna Ltd. would be required to have its number of members Limited to 200.

Presently the total number of members are:

• Directors & their relatives                                       =190
• 5coup]es[joint shareholders counted as a  single] =5
• Other                                                                       = 5
  Total                                                                              200 [excluding present & ex-employees]

Therefore since the number of members does not exceed 200, no reduction in the number of members is required for conversion.

Question 26.
Sound Syndicate Ltd. a public company, its articles of association empower the managing agents to borrow both short and long-term loans on behalf of the company. Mr. Liddle the director of the company, approached Easy finance Ltd., a non-banking finance company for a loan of Rs. 25,00,000 in name of the company. The lender agreed and provided the said loan. Later on, Sound Syndicate Ltd. refused to repay the money borrowed on the pretext that no resolution authorizing such loan have been actually passed by the company and the lender should have enquired about the same prior to providing such loan. Hence the company is not liable to pay such a loan. Analyze the above situation in terms of the provisions of Doctrine of Indoor Management under the Companies Act, 2013 and examine whether the contention of Sound Syndicate Ltd. is correct or not?
Answer:
According to the provisions of Doctrine of Indoor Management, an outsider while entering into contracts with a company is entitled to assume, due & regular compliance of all the formalities & internal proceedings required on the part of the company for the purpose of the contract, provided the outside has the knowledge, of the scope of authority of the company as contained in the MoA and also of the extent to which the authority has been delegated to the officials of the company. Thus an outsider can plead protection against the internal irregularities in the operations of the company & hold the company liable under the contract, only if he has the knowledge of MoA as well as the AoA and has understood their terms in their true perspective. In case the third party (outsider) has no knowledge of MoA & AoA then it cannot seek remedy under Doctrine of Indoor Management.

In the given case sound Syndicate Ltd. contracts with Easy Finance Ltd. to borrow a loan of Rs. 25,00,000. The AoA of sound Syndicate Ltd. empowers its managing agents (i.e. directors) to borrow loans on its behalf. Thus applying the above-stated provisions to the given case it can be concluded that if Easy Finance Ltd. had the knowledge of the AoA of Sound Syndicate Ltd. & was aware of the power of its directors to borrow loans on behalf of the company, then the fact, that no resolution authorizing the directors was actually passed, shall be of no consequence & Easy Finance Ltd. can hold the company liable for the loan. The passing of resolution authorizing the loan is a matter of internal management of the company which will be presumed to have been regularly performed, provided Easy Finance Ltd. has the knowledge of the AoA of Sound Syndicate Ltd. Thus the contention of Sound Syndicate Ltd. is not correct.

Question 27.
The Memorandum and Articles of Association of a company were delivered to the Registrar of Companies for registration on January 6, 2018. On January 8th, 2018, the Registrar issued the certificate of incorporation but dated it January 6th, 2018. On that very day (January 6th, 2018) the company made an allotment of its shares. The allotment was challenged that it was made before the actual issue of the certificate of incorporation. How would you decide and why?
Answer:
Hint: According to the provisions of The Companies Act, 2013, a company comes into existence the moment it is incorporated and a certificate of incorporation is issued. The company acquires a separate legal entity, from the date mentioned in the certificate and becomes competent to enter into a contract in its own name, purchase assets, incur liabilities in its own name and sue and be sued in its own name. Thus in the given case, the company has acquired a separate legal entity from the date of its incorporation as appearing in the certificate, i.e. 6th January 2018. Therefore the contract for allotment of shares made by the company is valid.

Question 28.
Popular Products Ltd. is a company incorporated in India, having a total Share Capital of Rs. 20 Crores. The Share capital comprises 12 Lakhs equity shares of Rs. 100 each and 8 Lakhs Preference Shares of Rs. 100 each. Delight Products Ltd. and Happy products Ltd. hold 2,50,000 and 3,50,000 shares respectively in Popular Products Ltd. Another company Cheerful products Ltd. holds 2,50,000 shares in Popular Products Ltd. Jovial Ltd., is the holding company for all the above three companies namely Delight Products Ltd.; Happy products Ltd; Cheerful products Ltd. Can Jovial Ltd., be termed as a subsidiary company of Popular Products Ltd., if it Controls the composition of directors of Popular Products Ltd. State the related provision in the favour of your answer.
Answer:
According to the provisions of section 2(46) of the Companies Act, 2013, a company is a holding company in relation to one or more other companies, which means a company of which such companies are subsidiary companies. Further section 2(87) defines the subsidiary company in relation to any other company (holding company), which means a company in which the holding company –

• controls the composition of the Board of Directors; or
• exercises or controls more than one-half of the total share capital either on its own or together with one or more of its subsidiary companies.

A company shall be deemed to be a subsidiary company of the holding company even if the control referred to in sub-clauses (z) & (it) is of another subsidiary company of the holding company.

In the given case subsidiaries of Jovial Ltd. – Delight Products Ltd.; Happy Products Ltd. & Cheerful Products Ltd. hold 2,50,000; 3,50,000 & 2,50,000 shares respectively in Popular Ltd. The total shareholding of these subsidiaries amounts to 8,50,000 shares which is more than half of the total share capital of Popular Ltd. of 12,00,000 No. of shares. Thus Jovial Ltd. is controlling more than half of the share capital of Popular Ltd. through its subsidiaries.

Further, if Jovial Ltd. is in a position to exercise control over the composition of the Board of Directors of Popular Ltd. then also Jovial Ltd. shall be regarded as the holding company of Popular Ltd. Thus it can be concluded that Jovial Ltd. is not the subsidiary, but is rather the holding company of Popular Ltd.