RESOLUTIONS AND AGREEMENTS
TO BE FILED AS PER SECTION 117 SUB SECTION (3)
CS D HEM SENTHIL RAJ AND CS K VINOTH
The
Companies Act, 2013 read with the rules imposes both on public and private
limited to register certain set of resolutions with the Registrar of Companies
within 30 days of passing the resolution in Board/General Meeting as an
attachment with the e-form MGT – 14 as the case may be.
Here
we have reproduced the content of both CA, 2013 and the respective rules for the
purpose of better understanding.
RESOLUTIONS
AND AGREEMENTS TO BE FILED AS PER SECTION 117 SUB SECTION (3)
a)
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Special
Resolutions
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b)
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Resolutions
which have been agreed to by all the members of a company, but which, if not
so agreed to, would not have been effective for their purpose unless they had
been passed as special resolutions;
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c)
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Any
resolution of the Board of Directors of a Company or agreement executed by a
Company, relating to the appointment, re-appointment or renewal of the
appointment, or variation of the terms of appointment, of a managing
director;
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d)
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Resolutions
or agreements which have been agreed to by any class of members but which, if
not so agreed to, would not have been effective for their propose unless they
had been passed by a specified majority or otherwise in some particular
manner; and all resolutions or agreements which effectively bind such class
of members though not agreed to by all those members;
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e)
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Resolutions
passed by a Company according consent to the exercise by its Board of
Directors of any of the power under clause (a) and clause (c) if subsection
(1) of Section 180.
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f)
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Resolutions
requiring a Company to be wound up voluntarily passed in pursuance of section
304.
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g)
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Resolutions
passed in pursuance of sub section (3)
of section 179; and
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h)
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Any
other resolution or agreement as may be prescribed and placed in the public
domain.
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Items as prescribed under Section 179 sub section (3):
a)
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To make
calls on shareholders in respect of money unpaid on their shares;
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b)
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To
authorize buy-back of securities under section 68
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c)
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To
issue securities, including debentures, whether in or outside India;
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d)
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To
borrow monies;
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e)
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To
invest the funds of the Company;
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f)
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To
grant loans or give guarantee or provide security in respect of loans;
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g)
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To
approve financial statement and the Board’s report;
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h)
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To
diversify the business of the Company’
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i)
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To
approve amalgamation, merger or reconstruction;
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j)
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To take
over a company or acquire a controlling or substantial stake in another
company;
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k)
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Any other matter, which may be
prescribed.
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Any other matters as prescribed
under Chapter 11 – Meeting of Board and its powers – Section 179 - Rule 8:
1)
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To make
political contributions;
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2)
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To
appoint or remove key managerial personnel (KMP);
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3)
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To take
note of appointment (s) or removal(s) of one level below the Key Management
Personnel;
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4)
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To
appoint internal auditors and secretarial auditor;
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5)
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To take
note of the disclosure of director’s interest and shareholding.
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6)
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To buy,
sell investments held by the company (other than trade investments),
constituting five percent or more of the paid up share capital and free
reserves of the investee company;
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7)
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To
invite or accept or renew public deposits and related matters;
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8)
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To
review or change the terms and conditions of public deposit;
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9)
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To
approve quarterly, half yearly and annual financial statements or financial
results as the case may be.
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Items
as prescribed under Section 180 sub section (1) clause (a) & (c):
a)
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To
sell, lease or otherwise dispose of the whole or substantially the whole of
the undertaking of the company or where the company owns more than one
undertaking, of the whole or substantially the whole of any of such
undertakings.
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c)
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To
borrow money, where the money to be borrowed, together with the money already
borrowed by the company will exceed aggregate of its paid up share capital
and free reserves, apart from temporary loans obtained from the company’s
bankers in the ordinary course of business:
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Note:
Under the erstwhile Companies Act, 1956, companies have passed an ordinary resolution for creation of charge on the assets of the company and for borrowing powers of the company. However it is mandatory that all the companies need to pass a special resolution seeking the approval of the members either at General Meeting/Postal Ballot for getting approval under Section 180(1) (c) (borrowing powers) and 180 (1)(a) under the Companies Act, 2013. However, in case of sale of the whole or substantially the whole of an undertaking of a company as specified under sub-clause (a) of sub-section (1) of section 180 can be done only by way of a postal ballot read with Postal Ballot Rules under Chapter VII of the CA, 2013.
Note: Postal Ballot is applicable only
to the public limited companies that are having more than 200 members.
HIDDEN IMPLICATIONS:
We
have also listed out some of the hidden implications of the section for your
ready reference:
1. Subsidiaries
of a Listed Company (Filing Consolidated Results with the Stock Exchange) are also required to file the board resolutions with ROC
whenever they are approving their Quarterly/Half-yearly and Annual financial
statement as the case may be in their board.
2. Now
every companies are required to place their Organisational Chart in their board
for the purpose of declaring/ approving the Personnel who can be categorized
under One Level below the Key Managerial Personnel.
3. Appointment
(s) or removal(s) of one level below the Key Managerial Personnel are required
to be placed in the board meeting/ensuing board meeting after their appointment
or removal as the case may be and the same is required to be filed with the
ROC. However, we are not required to file the board resolution of declaring the
Personnel who are coming under one level below the Key Managerial Personnel by
the Board.
4. Taking
in to record of new director disclosure of interest & shareholding and any
change in the Directors Disclosures are required to be filed with the Registrar
of Companies.
5. Companies
are not required to file the board resolution for appointment of Independent
Director for an initial period of first five years and subsequent approval by
the Members in the General Meeting. [However for the purpose of better
compliance, it is advisable to file E-Form MGT14 for such appointment of
Independent Directors in order to intimate the Registrar of Companies.]
6. Companies
are not required to file the board resolution for appointment or for filling up
the casual vacancy in the office of Statutory Auditor and Cost Auditor.
7. In
case of Internal Auditor or Secretarial Auditor, if there is any change or casual vacancy arising in
the office of Internal Auditor or Secretarial Auditor, the same needs to be approved by the board, and
such board resolution needs to be filed in E-form MGT14 with the ROC.
BY
CS K VINOTH
CS D HEM SENTHIL RAJ
