40 58857 companies act 2013 chapter xi
Post on 04-Jun-2018
219 Views
Preview:
TRANSCRIPT
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
1/27
Room No.6, 4thFloor, Commerce House
2A, Ganesh Chandra Avenue, Kolkata 700013
Connect me @ : (033) 3028 8955-57; (033) 3002 5630-33; 98310 99551mamtab@mamtabinani.com
Visit me @ : www.mamtabinani.com
Companies Act, 2013
By CS Mamta BinaniPast Chairperson (Year 2010), EIRC of ICSI
Practising Company Secretary
At the OU Grooming InstituteFor Company Secretaries
mamtab@mamtabinani.comdated : 14.09.2013
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
2/27
Room No.6, 4thFloor, Commerce House
2A, Ganesh Chandra Avenue, Kolkata 700013
Connect me @ : (033) 3028 8955-57; (033) 3002 5630-33; 98310 99551mamtab@mamtabinani.com
Visit me @ : www.mamtabinani.com
UNDER THE COMPANIES ACT, 2013
(Chapters XI, XII, XIII)
In this slide show Chapter XI
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
3/27
Section 149 (old 252,253,259) Minimum number of directors in case of private
and public companies is 2 and 3 respectively
The limit of maximum number of directors isincreased from 12 to 15
In 1956 act, CG approval was required to go beyond
12 In 2013 act, SR will be required to go beyond 15. No
CG approval is required
OPC needs to have minimum 1 directorAt least 1 director shall be a person - stayed in
India for a total period of not less than 182 days inthe previous calendar year
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
4/27
Women Director
Prescribed class of companies to have 1women director
As per the draft rules: Listed and alsofor companies with paid up capital of
Rs.100 crores and above
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
5/27
Independent Directors Public companies to have 1/3 IDs
Criteria: 1. Paid up capital >= Rs.100 crores
Outstanding loans/borrowings/debentures/deposits> Rs.250 crores
Nominee Director/ Representative Director not to
be considered as IDs (in conflict with existingclause 49)
IDsto abide by a detailed code of con (Schedule IV)
Issue of letter of appointment to ID mandatory
Letter to contain terms of appointment, Boardsexpectations, fiduciary duties etc.
Will not retire by rotation/ Transition period: 1 year
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
6/27
Independent Directors IDs to hold 1 separate meeting in a year
without other directors and managementTenure restricted to 2 terms (5+5)
Second term to require SR
Then cooling period of 3 years
Tenure served by ID before commencementof new Act not to be counted
Stock options not permitted for ID(inconsistent with Listing Agreement)
Profit related commission and sitting fees allowed
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
7/27
Qualifications of IDAppropriate balance of :
(i) skills(ii) experience and
(iii)knowledge in one or more fields of finance, law,
management, sales, marketing, administration,research, corporate governance, technical operationsor other disciplines related to the companysbusiness
After the appointment of ID, the B/R shall have to
furnish a statement to the effect that in the opinion ofthe Board, the ID possesses the appropriate balance ofskills, experience and knowledge
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
8/27
Database of IDs-Section 150Anybody, Institute or Association
Which has been authorised in this behalf by the CG
Shall create and maintain a data bank of persons
Willing and eligible to be appointed as ID
Such data bank shall be placed on the website of MCA
Or any other website as may be approved or notified bythe CG
Details as mentioned in Rules to be put up on the site
A disclaimer to be carried by the website
ID may also apply
Charges can be levied
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
9/27
Appointment of ID-OR The appointment has to be approved by the
Company In a general meeting
Special Business
Ordinary Resolution
The explanatory statement (section 102 alreadyenforced), shall inter-alia, mention the
justification for choosing the appointee as the ID
and also a statement that in the opinion of theBoard, he fulfils the conditions specified in the Act
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
10/27
Section 151 (old 252)-Small Sh
Listed company may have one director elected bysuch small shareholders
There is a change vis--vis the Companies Act of1956.
Now, only listed companies
Small shareholders has been explained in thesection itself as a shareholder holding shares of
nominal value of not more than Rs.20,000 or suchother sum as may be prescribed
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
11/27
Small shareholders director
Suo-motu - Listed Company or
Upon the notice of not less than 500 or 1/10thof thetotal number of small shareholders, whichever is lower
Such director will be considered as an ID
Shall not be liable to retire by rotation
Not for a period exceeding 3 consecutive years
On the expiry of the tenure, shall not be eligible for re-
appointment No person shall hold the office of small shareholders
director in more than 2 companies at the same time
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
12/27
Section 152-Appointment of Dir
Every Director needs to furnish a declaration-Notdisqualified for being appointed as Director
Valid DIN for getting appointed
Consent letter made mandatory for private limitedcompanies also and needs to be filed with ROC even
OPC-Individual member will be deemed to be the firstdirector unless specific appointment made
Retirement by rotation-provisions remain the same. Tonote that ID number not to be included in reckoningtotal number of directors
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
13/27
Sections 153, 154, 155, 156,
157, 158, 159-Provisions of DIN 153: To apply for DIN if intending to get appointed
154: CG to allot DIN to the applicant within one month
155: Cannot have more than 1 DIN
156: Existing Director to intimate DIN to allCompanies within 1 month
157: Company to inform DIN to ROC within 15 days(instead of a week) of the receipt of the same from the
Director 158: Obligation to mention DIN
159: Punishment for contravention of sections 155, 156
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
14/27
Section 160 (old section 257) Right of persons other than retiring directors to stand
for directorship:Amount of deposit increased from Rs.500 to Rs.1.00 lac
or such higher sum as may be prescribed
Now, even if the person is not elected but the person
so proposed gets more than 25% of total valid votes,the amount of deposit will be refunded
25%- be it by show of hands or on poll
The manner in which the notice will be sent to theshareholders will be prescribed by the CentralGovernment
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
15/27
Section 161 (old sections 260,262 & 313)Additional Director: If someones resolution for
appointment as a Director, gets defeated in a GM, then
that person cannot be appointed as an additional directorAlternate Director : 1) BOD may appoint, if authorised by
AOA otherwise the GM
2) The said appointee should not beholding alternate directorship for any other director in theCompany
3) If he is an AD to any ID, then AD
also needs to satisfy the criteria laid for IDIt is to be clarified here that a Director of the Companymay act in dual capacity, that is for himself and as an ADfor any other Director of the Company
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
16/27
En block resolution-Section 162
A single resolution not allowed for appointing 2 ormore persons as directors of the Company
unlessA proposal to move such a motion has first beenagreed to at the meeting without any vote being castagainst it.
(This provision now made applicable to private co. also)
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
17/27
Section 163 (old section 265) Principle of proportional representation
1. The AOA of the Company may provide for this2. If it provides, then not less than 2/3 of the total
number
3. By a single transferable vote or by a system of
cumulative voting or otherwise
4. Such appointment may be made once in every 3 years
5. Casual vacancies to be filled in as in the case of
additional director(It is to be noted that even a private limited companycan provide for this provision in its AOA)
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
18/27
Section 164 (old section 274) Disqualifications for appointment of Director
Apart from the existing disqualifications, theadditions are as below:
1. Conviction of an offence dealing with related partytransactions at any time during the last preceding 5 yrs
2. A person who has been convicted of any offence andsentenced in respect thereof to imprisonment for aperiod extending to 7 years or more
3. A person who has not obtained a DIN
(very important: old section 274(1)(g) mentioned ofpublic company only but the new section 164(2) hasremoved the word public)
S i 6
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
19/27
Section 165 Maximum number of directorships is 20 (instead of 15 in
old law), within which maximum 10 public limited
companies Including alternate directorships
Including directorship in private companies that are eitherholding or subsidiary company of a public company
If the members so want, they may by SR, specify a lessernumber of directorships for their directors
(It is to be noted that a transition period of 1 year will beprovided to the directors to comply with the maximum
number of directorships)Very Important: 1. The Directors have to intimate theirchoice to each of the company where they wish to continue
2. Intimation to be given to the ROC also
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
20/27
Sec 166-Duties of Directors-Carved
In line with the UK Companies Act, 2006
In accordance with the CompanysAoA
To act in good faith, to promote objects of
the company for benefit of members and thebest interest of the company, employees,community and environment
To exercise duties with due & reasonablecare, skill and diligence
Not to achieve any undue gain/advantage
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
21/27
Sec 167-Vacation of office of Director Inter-aia, If he absents himself from all the meetings
of the BOD held during a period of 12 months with or
without seeking LOA of the Board (Section 167(b)) Fine is hefty if he continues even after he should have
vacated his officeResignation of Director (Section 168)
Director also needs to forward to ROC, a copy of hisresignation along with detailed reasons within 30 daysof resignation in the prescribed mannerQuick fix solution
Where all directors have resigned, the promoter or inhis absence, the CG shall appoint required number ofdirectors. These directors to hold office till thedirectors are appointed in General Meeting
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
22/27
Section 169 (old section 284)
Removal of DirectorThe provisions remains the same
The words CG have been replaced by
Tribunal In case of contravention of the provisions of
this section, the penalty has been increased
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
23/27
Section 170 (old sections 303,307) The register shall contain:
- Particulars of its Directors
- KMP
Details like:
- Securities held by each of them in the Company or its
holding, subsidiary, subsidiary of companys holdingcompany or associate companies
- Other details as may be prescribed
(It is to be noted two separate registers-that of directors
and directors shareholding has been done away with)Very important: Return for appointment or any changetherein shall also be filed for appointment of KMP
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
24/27
Section 171 (old section 304) In the old section 304, the provision of inspection was
only there. No provision for extracts In the new law, provision for extracts included
In old law, any member (without charge) and anyother person (Re. 1.00 for every inspection)
In the new law, to members.
and to any person attending the annual generalmeeting (the provision u/s 171(1)(b) is to keep the
register open for inspection at every annual generalmeeting of the company and that it shall be madeaccessible to any person attending the meeting)
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
25/27
Section 172 (new)
Punishment provisionsIf a company contravenes any of theprovisions of Chapter XI and for which no
specific punishment is provided in the saidprovisions of the Chapter, the company andevery officer of the company who is indefault shall be punishable with fine whichshall not be less than Rs.50,000 but whichmay extend to Rs.5.00 lacs
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
26/27
Room No.6, 4thFloor, Commerce House
2A, Ganesh Chandra Avenue, Kolkata 700013
Connect me @ : (033) 3028 8955-57; (033) 3002 5630-33; 98310 99551
mamtab@mamtabinani.com
Visit me @ : www.mamtabinani.com
(which consists of Sections 149 to 172)
-
8/13/2019 40 58857 Companies Act 2013 Chapter Xi
27/27
top related