Introduction.—The Companies Bill, 2012, which was passed by the Lower House of the Indian Parliament (Lock Sabha) in December 2012, and the Upper House of the Indian Parliament (Rajya Sabha) on 8th August 2013, has been assented to by the President of India on 29 August 2013. The Companies Act, 2013 (Act 18 of 2013) (Act) replaced the Companies Act, 1956 (1956 Act). Ministry of Corporate Affairs had notified 99 Sections of Companies Act, 2013 on 12.09.2013 and 183 section on 01.04.2014. GOI has the liberty to make different provisions of the Act applicable on different dates.
The Act has 470 (four hundred and seventy) sections and 7 (seven) schedules as against 658 (six hundred and fifty eight) sections and 15 (fifteen) schedules in the 1956 Act. Many facets of the Act will be explained in the rules and Ministry had notified 19 sets of rules dealing with each Chapter.
HIGHLIGHTS OF THE AC
I. Key Managerial Personnel.—Certain companies will now have to appoint whole time Key Managerial Personnel, Such as (1) Managing Director or Chief Executive Office or Manager, (2) Whole time director, (3) Chief Financial Officer, (4) Company Secretary and such other officers as may be prescribed. The Act mandates the Key Managerial Personal to disclose to the Board of Directors all such contracts and/or arrangements in which they have any direct or indirect interest.
II. Class Action Status.—The Act provides for class action suits by requisite number of members, depositors or any class of them, if they are of the opinion that the management or conduct of the affairs of the company are conducted in a manner prejudicial to the interests of the company or its members or depositors. They can claim damages from directors, auditors or expert or any other person.
III. Corporate Social Responsibility (CSR). –Every company having a net worth of INR 500,00,00,000 (Indian Rupees one thousand crore) or more, or turnover of INR 1000,00,00,000 (Indian Rupees on thousand crore) or more or a net profit of INR 5,00,00,000 (Indian Rupees five crore) or more during any financial year shall constitute a Corporate Social Responsibility Committee (Committee) of the Board with at least 1 (one) Independent Director.
The Committee will formulate the policy including the activities specified in Schedule VII to the Act, which includes activities relating to promotion of education, social business projects, employment enhancing vocational skills etc. Companies are given preference for their local areas and areas around it operations for spending the amount earmarked for CSR. The Act mandates that concerned companies will have to spend at least 2% (two per cent) of the average net profits of immediately preceding 3 (three) years on CSR activities. If they do not spend, explanation should be given in the Directors Report for the same.
IV. National Companies Law Tribunal (Tribunal).—The Act contemplates the constitution of the Tribunal and Appellate Tribunal to facilitate expeditious disposal of proceedings. The High Court will now have no jurisdiction in matters relating to the Act and the Tribunal will exercise and discharge all the powers and functions conferred under the Act including the power to approve mergers, corporate reorganization, capital reduction which were hitherto exercised by the High Court.
V. Vigil Mechanism.—Every listed company or such class or classes of companies, as may be prescribed shall establish a vigil mechanism for directors and employees to report genuine concerns. Such mechanism is required to have in place adequate safeguards for protection of persons who use it. There is direct access to the chairperson of the Audit Committee in appropriate cases. Further, the details of establishment of such mechanism will have to be disclosed on the website of the company, if any, and in the report of the Board of Directors.
VI. Purchase of Minority Shareholding.—A viable squeeze out provision has been introduced in company law. Under the Act, where an acquirer or a person acting in concert with such an acquirer becomes the registered holder of 90% (ninety per cent) of the issued equity Share capital of a company, such acquirer shall notify the company of their intention to buy out the minority shareholding. The acquirer shall offer to minority shareholders of the company a price to be determined on the basis of valuation by a registered valuer based on the rules that may be prescribed. Further, minority shareholders may also offer the majority shareholders to purchase the minority shareholding, at a price determined by a registered valuer.
VII. Power of a company to Buyback its own Securities.—The Act provides that no offer of buy-back shall be made within 1 (one) year from the date of closure of the preceding offer of the buy-back. Therefore, every company now has to comply with a “cooling off” period of 1 (one) year between 2 (two) buy-backs.
The Act now also states that a company has to wait for a compulsory period of 3 (three) years after cessation of and remedying a default in inter alia repayment of any term loan or interest thereon to any financial institution or banking company, repayment of deposits or payment of dividend to its own shareholders, before making an offer to buy-back its own shares.
Another change brought about by the Act is the removal of the option given to a listed company to buy-back in odd lots.
VIII. Reduction of Share Capital.—The Act aims to consolidate the capital reduction process and introduces some more checks and balances for any reduction in capital. Some of the changes it brings about are:
No company can undergo reduction if it is in arrears of repayment of any deposits accepted by it, or the interest payable thereon.
The Tribunal is now required to given notice of every application made to it by a company, to the creditors, GOI, Registrar of Companies (ROC) and the Securities Exchange Board of India (SEBI) (the latter, in case of listed companies only). The Tribunal is required to take into consideration any representations made by the GOI/ROC/SEBI/creditors within a period of 3 (three) months from the date of receipt by them of the notice. If no representation is received within such time, the Tribunal will presume that none of the above has any representations to make in respect of the reduction.
The company while applying to the Tribunal is also mandatorily required to furnish an auditor’s certifying conformity with prescribed accounting standards.
A comparison of the Act with the 1956 Act and the new pre-condition that arrears of deposits must be repaid makes it evident that adequate protection of depositors has been made a pre-condition for approval of the reduction. Greater penalty has also been prescribed for officers who inter alia deliberately conceal the name of a creditor.
However, the involvement of multiple regulatory authorities and the requirement that an auditor’s certificate be furnished, although desirable, may delay the process. Such a conclusion is supported by the fact that the Act prescribes no timeline by which the Tribunal is required to pass its final confirmatory order.
IX. Merger and Amalgamations.—The Act introduces significant changes with respect to mergers and amalgamations. Some of these are:
A fast track procedure for mergers and amalgamation involving certain classes of companies, such as between a holding company and its wholly owned subsidiary, has been introduced, at these companies’ option. Approval of the company court is no longer necessary as long as the official liquidator and the Roc have no objection and the GOI has given its approval. However, given that additional compliance requirements have also been imposed on those companies that opt for this route instead of the traditional route, it remains to be seen whether or not these changes result in faster approval of the scheme.
It is now possible for Indian companies to merge into foreign companies, on fulfillment of certain conditions, Under the Act, any type of scheme of merger and amalgamation involving a foreign company requires prior approval of the Reserve Bank of India (RBI) and the foreign company must be incorporated in a jurisdiction to be notified by the GOI. Therefore, while it is now possible for Indian companies to merge into a foreign company, additional conditions have been introduced for all schemes of merger and amalgamation involving foreign companies.
In case of compromise/arrangement between a listed transferor company and an unlisted transferee company, the Tribunal may now provide that the transferee company shall remain an unlisted company until it becomes listed. Further, if the shareholders of the transferor company decided to exit, the exit price cannot be less than price under any regulations framed by SEBI.
X. Equity Shares with Differential Voting Rights.—The 1956 Act permits companies to issue share with differential rights. The companies (Issue of Share Capital with Differential Voting Rights) Rules, 2001 (DVR Rules) inter alia prescribe that a company must satisfy certain conditions for issuing shares with differential rights which includes (a) in case of listed companies, that such an issue should be approved by way of postal ballot; (b) shares with differential rights should not exceed 25% (twenty five per cent) of the paid-up share capital of the company, etc.
The requirements of the 1956 Act and the DVR Rules vis-à-vis issuance of shares with differential rights apply only to a public company or a private company which are subsidiary of a public company. These requirements are not applicable to a private company and therefore, a private company is free to issue any class of shares with differential rights. The new regime proposed under the Act has retained the concept of share with differential rights. However, no relaxation has been provided for private companies, unlike under the 1956 Act.
Composition.—The Act introduces the concept of a residency test of not less than 182 (one hundred and eight two) days stay in India in the previous calendar year for at least 1 (one) director on the board of a company. Further, the Act mandates that for such class of companies as may be prescribed by the GOI, there must be at least 1 (one) woman director on its board.
The Act requires at least 1/3rd (one-third) of the appointed directors on the board of a listed company to be Independent Directors to ensure transparency and independence in the decisions taken by the board.
Maximum Limit.—The maximum limit on the number of directors for a public company has been raised from 12 (twelve) to 15 (fifteen), which may be increased beyond 15 (fifteen) by shareholders voting with a 75% (seventy five per cent) majority. Approval of the GOI need not be sought for this increase in the maximum number of directors.
Number of Directorships.—The Act has increased the number of directorships a person can hold in different companies. A person can now hold directorship in 20 (twenty) companies. Out of these 20 (twenty) companies, a person can be a director in maximum of 10 (ten) public companies. A transition period of 1 (one) year from the date of commencement of the Act has been provided for compliance with this requirement.
Independent Directors.—The Act stipulates that the Independent Directors may be selected from a data bank of persons eligible and wiling, which would be maintained by any institute or association as may be prescribed by the GOI. The appointment of directors has to be approved by members in a general meeting and the explanatory statement to the notice should indicate justification of such appointment, Independent Directors will not retire by rotation and can hold office for up to 2 (two) consecutive terms of 5 (five) years each following which, there would be a 3 (three) year “cooling off” period before the Director is reappointed. Independent Directors would be eligible for sitting fees, commission from profits and reimbursement of expenses. However, they would not be eligible for stock options which are currently allowed to be granted to them. Further, the Act provides a code of conduct for Independent Directors, which includes a description of their roles, functions, and duties, the manner of their appointment, resignation and also evaluation requirements.
Listing Agreement and Independent Directors.—Several aspect of the Act are at variance with the Clause 49 of the Listing Agreement which all listed companies are required to abide by. The Act specifies certain conditions for determining if a person may be appointed as an Independent Director, which includes the proposed Independent Director’s relationship with the Promoter or Directors of the company. The stipulation in the Listing Agreement, which Prescribes that where the Chairman of the Board is a non-executive director, Independent Directors should comprise at least 1/3rd (one-third) of the Board or where the non-executive chairman is a promoter or person occupying management positions at the Board level or at one level below or person occupying management positions at the Board level or at one level below the Board or where the non-executive chairman is a promoter or person occupying management positions at the Board level or at one level below the Board, at least ½ (one-half) of the Board should be independent are not reflected in the Act. The Act now clarifies that a nominee director shall not be considered to be an Independent Director.
Liability of Independent Directors.—The Act has drawn a distinction between the liability of an Independent Director and Non-Executive director from rest of the Board. The Act has circumscribed the liability of Independent Directors only for all such acts of omission or commission by a company, which had occurred with his knowledge, attributable to him through board processes and with his consent or connivance or where there has been lack of diligence. The burden of proof is on the director.
Liability of Directors.—Liability of the company and any officer in default for any contravention for which no specific penalty is prescribed, has been increased from INR 50,000(Indian Rupees fifty thousand) to INR 5,00,000 (Indian Rupees Five lakh).
Duties of Directors.—The Act has attempted to codify the duties of directors. This attempt of codification cannot be said to be an exhaustive enumeration of the directors duties as in the codification of the concepts of “acting in good faith”, “exercise of due and responsible care”, skill and diligence”, exercise of independent judgment”, avoiding of conflict of interest are included. Hence the Common Law principles of duty as enunciated by the courts from time to time would still be relevant and the court may be inhibited by the codification of the general duties in dealing with this somewhat vexed question.
Disqualification of Directors.—New criteria for the disqualification of directors have been introduced in the Act. Amongst others, a directors is now disqualified from appointment as a director of any company if any of the companies on the board of which he is a director has not field any financial statements and annual returns for 3 (three) continuous financial years or ahs defaulted in payment of debentures etc.
Vacation of office.—In a major departure from the 1956 Act, the Act requires a director to vacate his office on a conviction of any offence involving moral turpitude or otherwise where he is sentenced to imprisonment of not less than 6 (six) months irrespective of whether the director has preferred an appeal against such conviction.
Resignation of Directors.—The resignation of a director (although effective from the date receipt by the company) has to be placed before the next general meeting of members. Directors have to mandatorily forward their resignation to the Roc, within 30 (thirty) days of the date of resignation in such manner as may be prescribed.
Meetings of the Board and its powers
Notice of board meetings.—The Act states that a 7 (seven) day notice shall be provided for convening board meetings. A board meeting may be called at shorter notice subject to the condition that at least 1 (one) Independent Director, if any, shall be present at the meeting. In case of absence of Independent Directors at a meeting with shorter notice, decision to be circulated to all directors and will be treated as final on ratification by at least 1(one) Independent Director. The infirmity caused by the absence of an Independent Director may thus be remedied by obtaining a post facto affirmative vote.
Circular Resolution.—The Act requires that the circular resolution has to be approved by majority of directors, as opposed to consent of all directors present in India or by a majority of directors present in India. Further, where any resolution has been put to vote by circulation and not less than 1/3rd (one-third) of the total number of directors require that the same be deicide at a meeting then the resolution shall be decided at a meeting of the board and not by circulation.
Board committees.—Besides Audit Committee, the Act has introduced separate criteria and incidental provisions for the constitution of the Nomination and Remuneration Committee, Corporate Social Responsibility Committee and Stakeholders Relationship Committee.
Loans to Directors.—There is a blanket prohibition for a company for making any loan or providing any guarantee or security to any director or person in whom the director is interested in connection with a loan taken by any director or the person in whom the director is interested. The section explains the expressions “to any person in whom the director is interested”. The giving of a loan to a managing or whole time director as part of the conditions of service or pursuant to any scheme approved by the members of the company by a special resolution are outside the scope of the section so are the loans made or guarantees or securities provided by a company which does so in the ordinary course of its business subject to the rate of interest charge not being less than the bank rate declared by the RBI.
Related party transactions.—The Act has widened the scope of transactions included in this category but has done away with the requirement of GOI approval. An arm’s length transaction in the ordinary course of business continues to remain an exception and would be outside the scope of the section and would constitute related party transactions. The Board’s report to the shareholders must include details of all the related party transactions including reasons for entering into such transitions. In listed companies, the related party transactions are required to be reviewed and approved by the Audit Committee.
Managerial Personnel.—The provisions of Schedule V which deal with remuneration of managerial personnel broadly corresponds to schedule XIII of the 1956 Act relating to limits on remuneration provided in the 1956 Act have been retained in the Act with certain additions. For companies with no profit or inadequate profits for remuneration shall be payable in accordance with a new Schedule, Schedule V and in case a company is not able to comply with this Schedule V, then the approval of the GOI would be required. In a major departure from the 1956 Act, provisions relation to appointment as contained in Schedule VI will now be applicable to private companies as well and if conditions are not met,. the approval of the GOI will be required
XII. Shareholder’s Meetings
Notice.—The Act provides for clear 21 (twenty-one) day’s notice for all General Meetings, which notice may be sent through electronic mode and should be served on directors as well.
Quorum.—The quorum requirement for general meetings of members have been substantially altered by linking the number of members that will constitute a quorum to the total number of shareholders of the company. 5 (five) members personally present shall be the quorum for public companies, if the total number of members does not exceed 1000 (on thousand); 15 (fifteen) members, if the total number of members are up to 5000 (five thousand) and 30 (thirty) members, if the total number of members exceeds 5000 (five thousand).
Proxies.—The GOI has been vested with the power to prescribe a class of companies whose members shall not be entitled to appoint another person as proxy. Further, 1 (one) person cannot be proxy for more than 50 (fifty) members.
Voting through electronic means.—The GOI will specify class or classes of companies who will be allowed this option and the manner in which voting through electronic means is to be organized.
Poll.—The distinction between private and public companies in terms of eligibility of members for making demand for poll has been omitted. Further, 1 (one) member present in person or by proxy and having not less than 1/10 (one-tenth) of the total voting power or holding shares on which an aggregate of not less than INR 5,00,000 (Indian Rupees five lakh) or such higher amount as may be prescribed has been paid up can demand poll.
Postal Ballot. Extended to all companies irrespective whether they are listed or unlisted. The GOI will provide what specific items would require members’ resolutions passed through postal ballot. Generally, a company may pass resolution by postal ballot instead of transaction such business at a meeting other ordinary business and business in which directors and auditors have to be heard.
Appointment of Auditors.—Unlike appointment at each annual general meeting of shareholders under the existing law, the Act requires an auditor to be appointed for a period of 5 (five) years and such appointment must be ratified at each AGM.
Rotation of Auditors.—Under the 1956 Act, there is no provision for compulsory rotation of auditors. To ensure independence of the audit firms. The Act proposes that in case of listed companies and other classes of companies as may be prescribed, it would be mandatory to rotate auditors after 1 (one) term of 5 (five) consecutive years in case of the appointment of an individual after 1 (one) term of 5 (five) consecutive years in case of the appointment of any individual as auditor and after 2 (two) terms of 5 (five consecutive years each in case of appointment of an audit firm with a uniform ‘cooling off’ period of 5 (five) years in both cases. Further, firms with common partners in the outgoing audit firm will also be ineligible for appointment as auditors during the cooling off period. The Act has allowed a transition period of 3 (three) years for complying with the requirements of rotation of auditors from commencement of this new law.
Removal of Auditors.—The Act empowers the Tribunal to suo moto or on an application from the GOI or person concerned, direct the company to change its auditor, if it is satisfied that auditor has directly or indirectly, acted in a fraudulent manner or abetted or colluded in any fraud by, or in relation to, the company or its directors. In addition to the above, the Act prescribes that the permission of the shareholders by way of a special resolution would be required for removing an already appointed auditor of the company.
Restriction on auditors from performing non-audit services.—The Act proposes that any services to be rendered by an auditor should be approved by the board of directors or the audit committee of the company. Additionally, the auditor is restricted from providing non-audit services to ensure independence and accountability of auditor. A transitional period has been provided to auditors to comply with the requirement of this section. Auditors or the audit firms providing non-audit services before the commencement of the Act shall have to comply with these provisions before the closure of the first financial year after the commencement of the Act. The joint and several liability aspects applicable to all partners of the auditors firm appear to be excessively strong.
National Financial Reporting Authority (NFRA).—The National Advisory Committee on Accounting and Auditing Standards, which has been constituted under the present law to advise the GOI on the formulation of accounting standards is sought to be replaced by the NFRA. The NFRA shall monitor and regulate the activities of both auditors and companies to enforce compliance of accounting and auditing standards.
XIV. Dividend.—The existing provisions in the 1956 Act in relation to transfer of specified percentage of profits to reserve have been dispensed with. Instead, companies are now free to transfer such amounts to reserve as they may deem fit. Rules are to be framed to declare dividends out of accumulated profits earned in earlier years and transferred to reserves.
A company which has incurred any loss during the current financial year up to the end of the quarter immediately preceding the date of interim dividend declaration cannot pay interim dividend at a rate higher than the average dividends declared during the immediately preceding 3 (three) financial year
Acceptance of Deposits.—Under the Act, companies can accept deposits only from members, if the same has been approved by members in a general meeting and subject to compliance of rules and conditions, which include (a) depositing at least 15% (fifteen per cent) of the amount maturing during the current and next financial year in a scheduled bank to be called as deposit repayment reserve account; (b) providing deposit insurance in the manner to be prescribed; (c) providing security, if any, for the due repayment.
Only such public companies, which have such net worth or turnover as may be prescribed can raise deposits from the public. Such companies, in addition to complying with the requirements stipulated for raising deposit from members will also have to procure credit ration for accepting deposits.
Deposits accepted before commencement of the Act or any interest due thereon will have to be repaid within 1 (one) year from commencement or from the date on which such payments are due, whichever is earlier. This provision appears to be unduly harsh.
However, such restrictions on acceptance of deposits shall not apply to banking companies, non-banking financial companies and any other companies as specified by the GOI.
Dormant Companies.—The Act has introduced the concept of a dormant company which would have to adhere to fewer compliance requirements. The Act defines a dormant company as one that has been formed for a future project or to hold an asset or intellectual property and has no significant accounting transaction. In such a case, the company may make an application to Roc in the prescribed manner to obtain the Status of a ‘dormant company’. The Act also provides that in case of a company which has not filed it finials statements or annual returns for 2 (two) financial years consecutively, the Roc shall have the power to issue a notice to that company and enter the name of such company in the register maintained for dormant companies.
One Person Companies (OPC).—A new business vehicle in the form of a single member company, which dispenses with the need to incorporate a company with a minimum of 2 (two) shareholders, as is currently the case, can be incorporated. This structure provides more flexibility and less compliance requirements for OPCs.
The introduction of an OPC into the legal system and the relaxed compliance requirements relating to the same is a move that would encourage entrepreneurship and corporatisation of business.
Small Companies.—The Act has defined a ‘small company’ to be a company other than a public company having a paid-up share capital which does not exceed INR 50,00,000 INR (Indian Rupees fifty lakh) or such higher amount as may be prescribed not exceeding INR 5,00,00,000 (Indian Rupees five crore) or turnover of which does not exceed INR 2,00,00,000 (Indian Rupees two crore) or such higher amount as may be prescribed not exceeding INR 20, 00,00,000 (Indian Rupees twenty crore). All such small companies are exempted form the compliance requirements as set out in the Act such as information to be provided in the financial statements, manner of filing returns, etc.
Subsidiary Companies .—The Act provides that unless otherwise provided, a company can make an investment only through 2 (two) layers of investment companies. This provisions does not affect a situation where in an Indian company is acquiring a foreign company, which has investment subsidiaries beyond 2 (two) layers as per applicable law of the foreign country; and subsidiary company from having any investment subsidiaries for meeting requirements of applicable law.
Sick Companies.—The existing provision of Sick Industrial Companies (Special Provisions) Act, 1985 in relation to provisions of sickness of industrial companies have been substituted with new provisions and concepts. The Act now provides that any company and not just an ‘industrial’ company be declare as sick company and avail the benefit of a scheme for it revival and rehabilitation.
The reference point for sickness has moved away from the concept of ‘erosion of net worth’ to ‘inability to repay the debt’. If a debtor company fails to repay or satisfy it debt within 30 (thirty) days from receipt of a demand from the secure creditors representing 50% (fifty per cent) or more in value of the outstanding debt of the company, the debtor company would be considered to be a sick company. A secured creditor whose debt is not so repaid or satisfied or the debtor company itself can apply to the Tribunal for a declaration of sickness. If the debtor company cannot offer a scheme for its revival, an interim administrator may be appointed by the Tribunal to take over the management of the debtor company. The Act requires that the interim administrator or the company administrator should be chosen from a databank maintained by the GOI or an agency appointed in this regard.
The tribunal is empowered to consider measures for rehabilitation of the sick company and permit interim administrator or applicant to furnish a draft scheme for its revival and rehabilitation. A scheme may include an option of takeover of the sick company by any solvent company or rescheduling or reconstructing of debts or obligation of the sick company to any of its creditors or class of the creditors. After considering all the measures, if the Tribunal concludes that revival is not possible it can order the winding up by appointment of a company administrator.
Winding Up. – The Companies (Second Amendment) Act, 2002 (Amendment Act) has sought to introduce several changes to the winding up regime under the 1956 Act. However, these provisions of the Amendment Act were not bought into forces. The Act in addition to including those provisions has added certain new provision in relation to winding up by following a summary procedure
- Eligibility for Summary Procedure
Companies having assets of book value not exceeding INR 1,00,00,000 (Indian Rupees One Crore) and belong to such class or classes of companies as may be prescribed by the GOI may be wound up in accordance with the summary procedure.
- Appointment of Official Liquidator
The act provides that the GOI may appoint any official liquidator as the liquidator of the company to be wound-up by the following summary process.
- Power of Official Liquidator
On appointment, the official liquidator is forthwith required to take into his custody or control all assets, effects and actionable claims to which the company is entitled to. Within 30 (thirty) days of his appointment, the official liquidator is required to submit a repost with the GOI in such manner and form as may be prescribed, including the report providing his opinion as any fraud being committed in promotion, formation and management of the affairs of the company.
On receipt of the report of the official liquidator, if the GOI is satisfies that any fraud has been committed by the promoters, directors or any other officer of the company, GOI can direct further investigation into the affair of the company.
- Sale of Assets
The official liquidator is required to expeditiously dispose of all the assets (movable or immovable) within 60 (sixty) days of appointment.
- Recovery of Debts
The official liquidator is required to serve notice of his appointment calling upon debtors of the company or the other contributors to deposit within 30 (Thirty) days the amount payable by the company. If the debtors does not pay or deposit within 30 (Thirty) days on the application if the official liquidator, the GOI may pass orders as it deems fit.
- Settlements of Claims
The creditors of the company are required to prove their claims within 30 (Thirty) days of the receipt of the letter from the official liquidator. The official liquidator on receipt of such claims is then required to prepare a list of claims in such a manner as may be prescribed and is required to communicate to each of the creditors informing them of the exceptions or the rejections of the claims and reason thereof. Any creditor aggrieved by the decision and the reason given by the official liquidator, may appeal to the GOI.