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OURTHEME: Instilling Governance through Integrity
ICSI - WIRC
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January - 2017
ICSI – WIRC e-newsletter
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Details of Editorial Board Index
Editor : 1 Articles : I Strong arm tactics of the MCA-Non- compliances CS Amit Kumar Jain under Section 135 –Whether justified 7
II Voting – path to contrive 12
Members : III Foresight behind Demonetization explained
through Interpretive Structural Modelling 17
CS Ankur Shah IV Bombay High Court upholds claim of legal heir to
nominee 21
CS Ashok Mishra
2 Cartoon 25
CS Bhumitra V. Dholakia
3 Dr Techlaw™ talks 26
CS Kaushik Jhaveri
4 Updates 27
CS Mayur Buha
5 WIRC Committees-2017 29
CS Nehal Thakkar
6 Chapter’s Contact Details 30
CS Piyush Bindal
7 Glory of Oral Coaching Classes (OCC) 31
CS Rahul Sahasrabuddhe
8 Team WIRC Chapters-2017 32
CS Y C Rao
9 Chairpersons of Other Regions 47
Ex-Officio Member :
10 Images gallery 48
CS Prakash Pandya
11 Disclaimer Clause 53
CS Praveen Soni
WIRC of ICSI Premises :
13, 56 & 57, Jolly Maker Chambers No. 2 (1st & 5th Floors), Nariman Point, Mumbai – 400021, Email : [email protected], Phone Nos. : 022- 61307900 / 61307901 / 61307902 Monthly TARIFF for advertisement in Focus:
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Coming together is a beginning;
Keeping together is progress;
Working together is success
Henry Ford
Dear Professional Colleagues,
At the outset, let me extend a warm and cordial welcome to ICSI-WIRC, your own home ground of the
profession. Our Profession has seen sweeping changes in the year 2016 viz, emergence of GST, NCLT, Bankruptcy code and many more. The Company Secretaries are expanding their horizons to various avenues apart from the traditional and conventional areas of the yester years. Company Secretaries are regarded as a composite package – from traditional secretarial field to compliance officer of not only corporate laws but also of other allied laws. Slowly we are moving towards, may I say, specialist mercantile lawyer – whether as in-house counsel or practitioner.
When I sat down to pen this maiden communication as the Chairman of one of the largest Region of ICSI which has seen many illustrious predecessors there were mixed feelings and emotions in me. However, my delight has been overshadowed with the mammoth amount of responsibility which I have to shoulder during the tenure as Chairman of this region. I have been a part of this region from my student days to till date and I consider it as a blessing for the abundant opportunity this region has given to me. I am humbled by the confidence reposed on me by my esteemed members in the council and the kind wishes which I have received from my seniors and other members.
Friends, we are planning to offer a sumptuous platter for you during the year viz. research initiatives, workshops, more half-day seminars and round table study circles of topical relevance, conferences, webinars and many more to come. Very soon you will be witnessing a new incarnation of FOCUS magazine, which will be featuring insightful and useful articles, interviews with regulators and other icons, cartoons to balance the mood etc.
I am taking this opportunity to urge all the members of the region to extend a whole-hearted support for all the activities and initiatives of WIRC.
I thank Mr. Sanjay Kumar Nagar, Joint Secretary who acted as the Administrator of WIRC and upholding the confidence of the Regional Council. My thanks to CS Dinesh C. Arora, Secretary for the ever supportive approach and commitment towards ICSI and guiding WIRC during its tough times.
CS Prakash K. Pandya Chairman – ICSI WIRC
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Let me take this opportunity to congratulate CS (Dr.) Shyam Agrawal who has been elected as President of ICSI for the year 2017. Our joy knew no bounds when we heard that CS Makarand Lele from our region was elected as the Vice President for the year 2017. When CS Makarand Lele was the Chairman of WIRC in 2011 I had the privilege of working very closely with him as the Secretary of the Regional Council. This gives me a feeling that the history has repeated and we are again getting an opportunity to work together for the development of ICSI aswell as WIRC. I am sure that ICSI will reach larger heights under the stewardship of CS (Dr.) Shyam Agrawal and CS Makarand Lele. On behalf of WIRC let me assure the President and Vice President a concrete support for all the developmental initiatives of ICSI.
The new teams have assumed their office in the Chapter level as well from January 19,2016. It is satisfying to note that all the chapter teams are young, bubbling with energy and a quiver full of novel ideas. Let me wish them all the very best and assure you to extend all sort of possible support for the development of profession. WIRC is looking forward to lot of collective initiatives with the Chapter during the year.
Friends, Success can be achieved only by TEAM efforts and it is said that TEAM signifies Together Everyone Achieve More. It is also said that Small drops of water makes the mighty ocean. Hence I sincerely appeal all the members of the region to wholeheartedly and selflessly support various activities of WIRC. It is worth mentioning that the Company Secretaries Benevolent Fund(CSBF) is an excellent initiative of ICSI to help its members as well as their families at the time of contingency. I would appeal to those who have not become member of CSBF, to get enrolled as its member and reap its returns. You may refer http://www.icsi.edu/csbf/Home.aspx to know more about CSBF. Alternatively, you may also contact the Western India Regional office, Mumbai or your respective chapters to know more about CSBF.
Your suggestions are important to us to grow. It is your criticisms which is going to make us stronger and not your compliments and we are very keen to receive your feedback. Do write to me at [email protected]. We look forward to receiving you for the WIRC activities as a member-participant in the days to come. Also write to me stating your ideas and the areas which you would like to contribute at WIRC level for the development of profession.
I have not touched upon some of the cardinal issues as I have to rush my message to the press to meet the timelines. However, I will be covering those in the coming issues and once again looking forward to see you all on the board for a meaningful and rewarding journey for one year.
Vande Mataram; Jai Hind
Professionally yours,
CS Prakash K Pandya Chairman ICSI-WIRC
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WIRCTEAM OFFICEBEARER
CH
AIR
MA
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V.C
HA
IRP
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SEC
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TREA
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CS (Dr.) Shyam Agrawal President, the ICSI
CS Makarand Lele Vice-President, the ICSI
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TEAMWIRC-2017
Shri Prakash Pandya Chairman
Ms. Shilpa Kedar Dixit Vice-Chairman
Shri Praveen Soni Secretary
Shri Ashish Karodia Treasurer
Ms. Swati Yash Bhatt Regional Council Member
Shri Amit Kumar Jain Regional Council Member
Shri Chetan Patel Regional Council
Member
Shri Devendra Vasant Deshpande
Regional Council Member
Shri Hitesh Kothari Regional Council Member
Shri Kamlesh Joshi Regional Council Member
Shri Rishikesh Gagan Vyas
Regional Council Member
Shri Makarand Lele Vice-President ICSI
Shri Ashish Doshi Central Council Member
Shri Ashish Garg Central Council Member
Shri Atul H Mehta Central Council
Member
Shri Mahavir Lunawat Central Council
Member
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Authored by : CS Ramaswami Kalidas Working with : Reliance Power Limited e-mail : [email protected]
Introduction
It is a matter of great consternation that the Department of Company Affairs is working overtime to book companies for alleged violations of the provisions of Section 135 of the Companies Act, 2013(hereinafter the “Act”).Show cause Notices are being issued to companies on various grounds of non-compliances. Considering the fact that Section 135 by itself does not contain any penal provisions, proceedings are being initiated under Section 441 of the Act and companies are being asked to show cause as to why they should not be directed to file applications for compounding of offences allegedly committed by them under Section 135. The alleged offences cover the entire gamut of conceivable non-compliances ranging from failure to incur expenditure for CSR activities against statutory obligations, failure to constitute a CSR Committee, failure to include in the Report of the directors as called for under Section 134(1)(o)of the Act, details about the CSR policy developed and implemented by the company during the year even in cases where no expenditure had been mandated either due to the absence or the net profits being below the prescribed thresholds.
It is against this background that it would be appropriate to analyse the legal provisions contained in Section 135 , to also examine the vires of the MCA General Circular No.21/2014 dated 18.6.2014 on the strength of which such notices are being issued . Iin our view the said circular travels beyond the scope of the Act. The Department appears to be oblivious to the amendment proposed to the Section under the Companies (Amendment)Bill, 2016 which has unfortunately gone into cold storage and the recommendations of the Company Law Committee .A deep dive into the above provisions will soon reveal that the overdrive launched by the MCA to bring ostensibly to book the recalcitrant companies is in many cases somewhat misplaced, is legally untenable and not entirely based on a proper appreciation of the statutory provisions of the Act .
Section 135(1)-Year of applicability of the prescribed thresholds
We are aware that Section 135 has been made enforceable in the Statute vide Notification no..SO 582(E) dated 27.2.2014 with effect from 1.4.2014.
Section 135(1) provides that every company :
a) having a net worth of rupees five hundred crores or more or
b) a turnover of rupees one thousand crores or more or a net profit of rupees five crores or more
c) a net profit of rupees five crores or more ,
during any financial year(Emphasis supplied) shall constitute a CSR Committee of the Board consisting of three or more directors out of which at least one director shall be an independent director.
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It is pertinent to note that the above thresholds are mutually exclusive and if a company comes within the ambit of one of the above , it will be necessary for it to constitute in the first place a CSR Committee of the Board with the required composition of directors. The Sub-section makes use of the expression “during any financial year”. It does not provide any insight as to the particular financial year in respect of which the prescribed thresholds are to be applied. As the Section has become applicable to the financial year 2014-15, it would be a logical conjecture to assume that the reference should to the preceding financial year ended March,31, 2014 .Any other presumption would necessarily bring in an element of retrospectivity to the provision, a consequence which is totally undesirable in what is a essentially a procedural law.
It is also pertinent to note that Section 135(1) only calls for the constitution of the CSR committee in cases where the prescribed thresholds are breached.
Section 135(5) –Provides for determination of quantum of CSR spends based on average profits for three preceding financial years
In contrast to Section 135(1), Section 135(5) sets out the obligations to make CSR spends in applicable circumstances. It provides that the CSR spends should be at least equivalent to two percent of the average net profits of the company made during the three immediately preceding financial years .The Section having been introduced with effect from April, 1, 2014, in its first year of applicability, the CSR spends have to be determined with reference to the average net profits during the three immediately financial years.
It is pertinent to note that the terminology of “three immediately preceding financial years” is used only in Section 135(5) in contra-distinction with Section 135(1) which speaks only about “any financial year”. From this it is abundantly clear that the thresholds for net worth and turnover should be applied in the first year of operation of the Section with reference to the status obtaining as of March,31, 2014 as per the audited financial statements of the company. Only Section 135(5) provides the mechanism for determining the quantum of CSR spends thus making it necessary to consider the net profits for the preceding three financial years.
Will the three year bench mark under Section 135(5) apply to every company
Neither Section 135(5) nor the Rules introduced by the MCA through the Companies(Corporate Social Responsibility Policy) Rules, 2014 address the question as to how the bench mark under Section 135(5) has to be applied in the case of a company which has not been in existence for three years or more as of April,1, 2014.In our view, if a company has been in existence only for say two years as of April,1, 2014, the quantum of CSR spend should logically be based on average net profits for the last two years , given the legislative intent under Section 135(5).
Net Profit includes “Loss”
Section 135(5) speaks only about the consideration of the net profits for the preceding three financial years for computing the quantum of CSR spends. What if a company has net losses in any of the intervening period of three years. The term ”profit” connotes the idea of pecuniary gain.(Shivamurthy Swami v Agadi Sanganna Andanappa (1971)(3)SCC 870.
The term “profit” has been held to mean for the purposes of Section80 HHC (1) and (3) of the Income Tax Act, 1961 to mean a positive profit worked out after taking into consideration the losses , if any.(A.M.Moosa v Commissioner of Income Tax(2007)(9 SCR831).
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In Commissioner of Income Tax v Harprasad &Co.P.Ltd (99 ITR 118),the Supreme court has held that “for the charging provisions of the Act, it is discernible that the words ”Income “ or “profits and gains” should be understood as including losses also , so that , in one sense, ”profits and gains ”represent” plus income” whereas losses represent ”minus income” .In other words, loss is negative profit” .
From the above it follows that while computing the average profits for the three preceding years, if a company has incurred for any year net loss, the same should be taken into consideration while determining the average net profits.
Para V of MCA General Circular No. 21/2014, dated 18.6.2014- Not legally sustainable-Words used in a Statute cannot be substituted or expanded
In response to the several references and representations from the stakeholders seeking clarifications on the provisions under Section 135 of the Act, the above circular was issued. Para V of the circular, clarifies the term “Any financial year” as appearing in Section 135(1), and states as under:
“Any Financial year” referred under sub-section (1) of Section 135 of the Act read with Rule3(2) of Companies CSR Rule,2014, implies ”any of the three preceding financial years”
In our view, the above extract is not legally tenable as it adds to Section 135(1) words which do not form a part of the sub-section. The above para has the effect of extending the amplitude and contours of the term ”any financial year” as contained in sub-section(1).
It is a settled principle of Statutory Interpretation that the language of the Legislature is primarily to be gathered from the language used which means that attention should be paid to what has not been said.(Gwalior Rayon Silk Mfg(Wvg.)Co.Ltd v custodian of Vested Forests(AIR 1990 SC 1747 at page 1752).As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided.(Shyam Kishori Devi v Patna Municipal corporation, AIR 1966 SC 1678).
In Pinner v Everrett(1969)3 All ER 257) the Court observed that it is wrong and dangerous to proceed by substituting some other words for words for the Statute. The above observations have been considered in several citations by the Indian courts. In State of Kerala v Mathai verghese(1986)(4 SCC 746) the court has observed that the Court cannot reframe the legislation for the very good reason that it has no power to legislate.
From the above, it is clear that words used in the Statute cannot be substituted or expanded either by the Judiciary or through sub-ordinate legislation intended to be clarificatory in nature. Besides, circulars or instructions which have no statutory backing do not amount to law and cannot dilute or override the effect of a constitutional or statutory provision.(Municipal Corporation Amritsar v Senior Superintendent of Post Offices, Amritsar division (AIR 2004 SC 586).
In the light of the foregoing, it is respectfully submitted that the relevant portion of the General circular as discussed above is legally unsustainable and suffers from infirmity.
Amendment proposed to Section 135(1) by the Companies Amendment Bill, 2016
With a view to ease the rigors of procedure in the Act, several amendments have been proposed to the Act by the companies Amendment Bill 2016 which has been referred to a select parliamentary Committee for review. Readers are aware that the bill was placed in parliament in March, 2016 and has unfortunately gone into cold storage.
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The bill, inter alia, proposes to amend Section 135(1) by substituting the words ”any financial year” by the words ”the immediately preceding financial year”.
The proposed amendment vindicates our stand that in Section 135(1) the reference only should be only to the financial year ended March,31 ,2014 where it comes to the application of the bench marks of “net worth” or “turnover” as contemplated in the provision.
Recommendations of the Company Law Committee
As a prelude to the Companies Amendment Bill, 2016, by an office order dated June,4, 2015, the Ministry of Corporate Affairs, had constituted, under the chairmanship of the Secretary, Ministry of Corporate Affairs, the Company Law Committee to , inter alia, make recommendations on the issues arising from the implementation of the Companies Act, 2013.The Committee , has, since submitted its Report to the Government.
It is pertinent to note that in Paragraph 9.17 of its Report, the Committee has recommended that the words “any financial year” as appearing in section 135(1) be replaced by the words ”preceding financial year”.
The Report of the Company Law Committee as also the amendment proposed in the companies Amendment Bill, 2016, conclusively demonstrate that in section 135(1) the reference should be only to the immediately preceding financial year.
Section 135(1) should be distinguished from Section 135(5)
We would reiterate our earlier submission that the tapestry weaved in Section 135(1) is different from Section 135(5). Put differently it is only where a company has a net worth of rupees five hundred Crores or more or a turnover of rupees one thousand crores or more in the financial year ended March, 31, 2014 should it be under obligation to constitute a CSR Committee as required under Section 135(1).If in addition to satisfying the above criteria in Section 135(1), the company has reportable profits based on the average of the net profits for the immediately preceding three financial years it shall be under statutory obligation to incur the mandatory expenditure towards CSR.
It therefore follows from the above that if a company had satisfied either the net worth or the turnover criteria in either financial year 2011-12 or 2012-13 but not in the financial year 2013-14 and in addition it has no mandate to have spends for CSR based on average profitability, it should not be called upon to constitute a CSR Committee in the financial year 2014-15.
It is viewed with concern that the offices of the Registrar of companies are issuing notices on companies for not constituting a CSR Committee or for not reporting in the Board’s Report under Section 134 on the CSR activities carried out in the year 2014-15 even in cases where the company had no obligation to make CSR spends based on its average profitability in the financial year 2014-15 nor was it called upon to constitute the CSR Committee based on its turnover or net worth for the financial year ended March,31, 2014. If the subject company had satisfied either the net worth or turnover criteria in either financial year 2011-12 or in 2012-13 but did not meet with the criteria for the year 2013-14 , it is under no obligation u/s 135(1) to set up a CSR Committee of the board during the financial year 2014-15.
That the Department is trigger-happy on this score is evident from the fact that in the case of one company , the tangible net worth was in excess of the threshold in the year 2011-12 only. The net worth was below the threshold both for the years 2012-13 and 2013-14.Its turnover for all the three years under consideration was below the prescribed bench mark and the company had no obligation for making spends in the year 2014-15 since it did not have reportable profits based on the average of the
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preceding three financial years. Yet the Company has been served a show cause notice for not setting up the CSR Committee as also for not reporting on CSR activities in the Board’s Report for the Financial year 2014-15. While justifying the action taken, the office of the ROC has also referred to the Departmental circular dated June, 18, 2014, the legality of which has been discussed at length in the foregoing discussion.
To put the facts in the right perspective, we are of the view that precipitatory action of the genre being taken by the Registrar’s office would be justified only if the errant company had legal obligation to have spends for CSR in the year 2014-15 and it had either under spent or had not incurred any expenditure at all towards CSR and it has also not stated in the Report of its directors , the reasons for not spending the amount as called upon by the second proviso to Section 135(5).Alternatively, if the company based on either the net worth or turnover criteria for the financial year ended March,31, 2014 had to constitute a CSR Committee, it should report in its Report of the directors for the year 2014-15 about the committee having been constituted ,its composition, the fact that a CSR policy has been formulated .If the company were under no obligation to incur CSR costs in the year 2014-15 due to absence or paucity of net profits , the Board’s Report should state that it had no obligation to incur CSR costs on grounds of lack of profitability.
Requirement to set up CSR Committee should be necessary only when CSR spends are mandated
As the existence of net profits of the stipulated level is the sine quo non behind the trigger point for incurring CSR costs, in our view, the need to set up a CSR Committee merely upon satisfying either the net worth or turnover criteria should not legally arise unless the company has to incur CSR costs based on its net profits. Otherwise setting up a Committee merely to satisfy the requirement of law would serve no purpose as the committee would have no role to play in the absence of liability to incur costs. The Committee would be merely ornamental unless the company is conscious of its voluntary obligation to sub-serve the interests of the stakeholders in the Society regardless of whether it has a legal obligation to have CSR spends or not.
Conclusion
In our view, the MCA has gone on an overdrive and is trigger-happy in its endeavor to bring to book alleged contraventions of the provisions of CSR .There is indeed a case for exercise of restraint in the matter and penal action should be initiated only where such action can be justified on grounds of law. It would not be out of place to state that the Company Law committee has had the foresight to recommend in paragraph 9.24 of its Report that as the requirements relating to CSR are new, all companies should be given the required flexibility for a reasonable period say five years to experience the implementation of this provision as otherwise it would defeat the intent behind the provision. This observations of the Committee , we would add, have been made in the context of providing to companies the required flexibility over deciding on the areas to be ear-marked for CSR activities and the manner in which such expenditure should be incurred ,whether directly or through an accredited intermediary.. Notwithstanding, the sentiment expressed should be applied in good measure where even it comes to implementing other requirements relating to CSR. Otherwise, the corporate Sector which is already wilting under the over burden of a multitude of compliances called upon not only under the Act but under allied legislation may succumb, as it were, to the proverbial last straw which broke the camel’s back.
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Authored by : CS Dharmesh Vankar e-mail : [email protected]
Vote for ……!!!!!! Vote for ……!!!!!! I am sure that most of the readers have heard this kind of wording once upon a time in life, especially during election. Voting means to select or approve. In general it means a formal indication of a choice between two or more candidates or courses of action. Most of the times, people consider the voting as a time consuming or irrelevant matter or consider voting day, especially during Election Day as a “Chutti”. Some of the reader might get flash back from the movie named Bhootnath returns where Bhootnath (Mr. Amitabh Bachachan) throws light on the mind set of voters. Let’s go towards topic: Since the Company is an artificial judicial person, it requires holding meeting of shareholders – Annual General Meeting or Extra Ordinary General Meeting. In this article, we will focus mainly on the Annual General Meeting. Annual General Meeting – wording depicts meeting which is held annually. Section 96 of the Companies Act, 2013 enjoins that every Company [other than One Person Company (OPC)] to hold a general meeting as its annual general meeting in addition to any other meeting each year. In short, AGM should be held each year. Suppose, if meeting is adjourned to next calendar year, then it doesn’t become the meeting of that calendar year. [Sree Meenakshi Mills Co Ltd V. Asst. Registrar of Joint Stock Companies [1938] 8 Comp Cas 175 (Mad)] The first Annual General Meeting shall be held within a period of 9 months from the closing of first financial year as against 18 months from date of incorporation as provided under the 1956 Act. Other than first AGM, every annual general meeting shall be held within a period of six month of closure of financial years. (i.e. 30th September is due date for holding annual general meeting except extension sought by the Company for holding AGM.) [Third proviso to Sec. 96(1) of Companies Act, 2013] WHY TO HOLD AGM? As per Section 96 of the Companies Act, 2013, following business are normally transacted at AGM:
- Approval & adoption of financial statements - Declaration and approval of dividend - Appointment of statutory auditor - Appointment of directors in the place of those retiring
The above mentioned businesses can be approved and opined by shareholders by way of voting, either in favour or against or sometimes shareholders feels that to remain
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neutral is beneficial for them. If a motion gets support of the required members in a meeting, it becomes resolution. Who has right to vote at Meeting? Equity shareholders have a right to vote on every resolution of the Company. Preference shareholders have a right to vote only on such resolutions which
- directly affect their rights; - For winding up of the Company; and - For repayment or reduction of share capital.
Preference shareholders have a right to vote on all resolutions of the Company at any meeting if their dividends are in arrear for an aggregate period of not less than 2 year. [Surya Kant Gupta v. Rajaram Corn Product (Punjab) Pvt. Ltd., (2008) 84 CLA 310 (CLB)] Debenture holders don’t have direct right s to be heard or vote at meeting. Proxies Member who is entitled to attend and vote at the meeting, can appoint another person as a proxy to attend and vote at ameeting on his behalf. However, a person appointed as proxy doesn’t have a right to be heard at a meeting and he can vote only on poll unless Articles of Association of Private Limited Company provides otherwise.(Sec.105 of Companies Act, 2013) A member of Section 8 Company Limited by Guarantee shall not be entitled to appoint any other person as his proxy unless such other person is also a member of such Company but if the articles of the Company permits, proxy can vote by way of show of hands also. Where the articles of a private company provide for voting by show of hands by a proxy, the chairman in counting the number of votes must count the vote of each person who holds proxies as a single vote and not count a vote for each of the members whose proxies he holds. [(Earnest v. Loma Gold Mines Ltd., (1897) 1 ch 1] For making proxy form valid, there should be a payment of proper stamp duty under Stamp Act, unstamped proxy form should not be considered. The Chairman of a meeting has authority to accept unstamped proxies but the chairman should keep in mind the repercussion which may arise due to acceptance of such unstamped proxies. (M. G. Mohanraj v. Mylapore Hindu Permanent Fund Ltd (1990)1 Comp LJ 87 (Mad). No person shall act as proxy on behalf of members exceeding 50 and holding in aggregate more than 10% of total share capital of the Company carrying voting rights. [Fourth proviso to Sec.105 (1) read with rule 19(2) of Companies (Management and Administration) Rules, 2014]. While exercising vote on poll a member can freely distribute some of his votes in ‘favour’ of a resolution, while some ‘against’ or he may leave out some of his votes. In short, he can use his votes as per his desire (personal right). Restriction on voting rights: In terms of articles of a Company, no member shall exercise any voting right in respect of any shares registered in his name on which any calls or other sums presently payable by him have not been paid or on which Company has exercised any right of lien.(Sec.106) But where the articles of a company do not contain any provision restricting the exercise of voting rights of members, a member cannot be prevented from voting, even though calls or other sums payable by him have not been paid or the Company has exercised, any right of lien over his shares. (Pasari Flour Mills Ltd., Re, (1962) 32 Com Cases 896 : AIR 1961 MP 340)
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Article 52 of Table F of Schedule I to the Companies Act, 2013, makes provision that in the case of joint holders, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of other joint holders. For this purpose, seniority shall be determined by the order in which the names stand in the register of members. Joint holders have a right to instruct the Company as to the order in which their names are to appear in the register. (T. H. Saunders & Co. Ltd., Re, (1908) 1 Ch 415) No member can be prohibited from exercising his voting right on any other ground. Types of Voting By show of hands postal ballot E-voting Poll Voting by show of hands = 1 shareholder = 1 vote Generally, at General Meeting a resolution shall always be decided by show of hands, unless a poll is ordered or demanded. A declaration by the chairman and an entry in the minutes book is conclusive evidence of passing of such resolution. Further, chairman’s declaration in a voting on a show of hands is conclusive evidence of only the fact of the passing of the resolution. It does not prevent the legality or validity of the resolution being questioned. The Chairman’s declaration may be disputed where it is inaccurate on the face of it or where fraud is shown. Unless the articles of a Company otherwise provide, neither a transferee of shares nor a person entitled to any shares by transmission by operation of law, will be entitled to vote before being registered as a member. Demand for poll = 1 share = 1 vote A poll can be ordered either before or on declaration of result of the voting on any resolution by show of hands. The Chairman of the meeting on his own or on demand made by specified members (holding 1/10 of the total voting power or paid up share capital of Rs. 5,00,000 or more) order for a poll. The demand for poll may be withdrawn by the persons who made the demand. [Sec. 109(1)] While a proxy cannot speak at the meeting, he has right to demand or join in the demand for a poll. The poll may be taken by the Chairman, on his own motion also. It is not necessary that voting in poll should be by secret ballot. The manner in which the voting is to be taken on poll being demanded has been left at the discretion of the Chairman by the articles of association. (Major Mella Sigh v. Jullundur Club Ltd. [(1969) 39 Comp Cas 1018 (P&H)] Where a poll is taken, the meeting is regarded as continuing, until the ascertainment of the result of the poll. (Poll is part of the meeting). [Holmes V. Keyes, (1958) 2 All ER 12 : (1958) 28 Com Cases 419 (Ch D) at 135] Though the Chairman may fix the time of taking the poll, he cannot, as long as votes are coming in, close the poll on the ground that the period of time allotted by him is over, but after waiting for a reasonable time, if no more voters are turning up, he may declare the poll closed. If the Chairman improperly excludes a voter, the poll will be invalidated. (Shaw v. Tati Concessions Ltd., (1913) 1 Ch 292)
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As per Section 104(2) of the Companies Act, 2013, if a poll is demanded on the election of the Chairman, it shall be taken forthwith and the Chairman elected on a show of hands shall continue to be the Chairman of the meeting until some other person is elected as Chairman as a result of the poll, and such other person shall be the Chairman for the rest of the meeting. Postal ballot: Postal ballot means voting by post or through any electronic mode. As per rule 22 (16) of Companies (Management and Administration) Rules, 2014, Every Company, except a One Person Company and Company having less than or equal to 200 hundred members, shall transact items of business as follows, only by means of postal ballot instead of transacting such business at a general meeting. Ordinary business shall not be transacted by means of a postal ballot.
a) alteration of the objects clause of the memorandum and in the case of the company in existence immediately before the commencement of the Act, alteration of the main objects of the memorandum;
b) alteration of articles of association in relation to insertion or removal of provisions which, under sub-section (68) of section 2, are required to be included in the articles of a company in order to constitute it a private company;
c) change in place of registered office outside the local limits of any city, town or village as specified in sub-section (5) of section 12;
d) change in objects for which a company has raised money from public through prospectus and still has any unutilized amount out of the money so raised under sub-section (8) of section 13;
e) issue of shares with differential rights as to voting or dividend or otherwise under sub-clause (ii) of clause (a) of section 43;
f) variation in the rights attached to a class of shares or debentures or other securities as specified under section 48;
g) buy-back of shares by a company under sub-section (1) of section 68; h) election of a director under section 151 of the Act; i) 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; j) Giving loans or extending guarantee or providing security in excess of the limit
specified under sub-section (3) of section 186. It is however, discretionary for a Company to pass any resolution by way of postal ballot other than
i. Ordinary business items; and ii. Any business in respect of which directors or auditors have a right to be heard
at any meeting.
As per Section 110 (2) If a resolution is assented to by the requisite majority of the shareholders by means of postal ballot, it shall be deemed to have been duly passed at a general meeting convened in that behalf. However, in the case of Godrej Industries Ltd., in re [2014] 120 CLA 62 (Bom), it was held that compulsory voting by postal ballot and by electronic voting to the exclusion of an actual meeting cannot and do not apply to court convened meeting for approval of schemes of arrangement / compromise / amalgamation. Voting through electronic means: E-voting process has been introduced in order to secure wider participation of Shareholders in the important decisions of the company since postal method of voting has its own limitation. So, Government found the solution in the form of e-voting.
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As per Section 108 of Companies Act, 2013 read with 20 Companies (Management and Administration) Rules, 2014, E- Voting is mandatory for:-
i. Listed Company other than Companies whose equity shares listed on a SME Exchange or on the Institutional Trading Platform; and
ii. Unlisted Public Company having more than 1000 shareholders. NSDL, CDSL & Karvy are authorized by MCA for providing e-voting platform. Their system of e-voting is certified by Standardization Testing and Quality Certification (STQC) Directorate, Department of Information Technology, Ministry of Communications & IT, Government of India. The facility of remote e-voting does not dispense with the requirement of holding a general meeting by the Company. [Clause 7.2 of SS-2] Every Company, which has provided e-voting facility to its members, shall also put every resolution to vote through a ballot process at the meeting. [Clause 7.2.2 of SS-2]. Ballot process may be carried out by distributing ballot / poll slips or by making arrangement for voting through computer or secure electronic systems. Any member, who has already exercised his votes through remote e-voting, may attend the meeting but is prohibited to vote at the meeting and his vote, if any, cast at the meeting shall be treated as invalid. Regulation 44(3) of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, has prescribed that the listed entity shall submit to the stock exchange, within forty eight hours of conclusion of its General Meeting, details regarding the voting results in the format specified by the Board. Appointment and role of the scrutinizer: The Board of directors shall appoint one scrutinizer, who may be Company Secretary in practice or Chartered Accountant in practice or Cost Accountant in practice, or an advocate, or any other person who is not in employment of the company and is a person of repute who, in the opinion of the Board can scrutinize the voting process in a fair and transparent manner. The scrutinizer so appointed may take assistance of a person who is not in employment of the company and who is well-versed with the voting system. The scrutinizer within a period of not exceeding three working days from the date of conclusion of e-voting period, unblock the votes in the presence of at least two witnesses not in the employment of the company and make a scrutinizer’s report of the votes cast in favour or against, if any. Such report shall be sent to the Chairman. The register and all other papers relating to electronic voting shall remain in the safe custody of the scrutinizer until the chairman considers, approves and signs the minutes. The results declared along with the report of the scrutiniser shall be placed on the website of the company, if any, and on the website of the agency immediately after the result is declared by the Chairman. [rule 20 of Companies (Management and Administration) Rules, 2014]
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Authored by : CS Prathamesh M Joshi Working with : Corporate Legal, Legal Logic Consulting. e-mail : [email protected]
Demonetization was a term which would only be heard from the mouths of hardcore, traditional economists in the rest of the world, however, the picture is quite different when it comes to India. On 8th November 2016, at around 08.00 pm, India’s honourable Prime Minister Shri. Narendra Modiji made an announcement with regards to a discontinuation of Rs. 500/- currency notes and Rs. 1000/- currency notes which created a furore in India. Many congratulated the move and lauded it as a concrete step to fight back corruption being the top most reason behind India’s economic inequality. People were even willing to bear all the brunt (exchanging the then discontinued notes in Banks, queueing up in front of ATMs for money) just to see through this plan to a logical conclusion. However, as days went by, many others came up with their own theories as to why this move was a bit hasty and how ill prepared Indian system was to control it.
There are many credible views and theories from both the sides and hence the author of this article has made an attempt to decipher why Demonetization is a good step for India’s future growth with the help of Interpretive Structural Modelling (ISM).
ISM, a brief introduction1:
Interpretive structural modelling (ISM) is a well-established methodology for identifying relationships among specific items, which define a problem or an issue. This approach has been increasingly used by various researchers to represent the interrelationships among various elements related to the issue. ISM approach starts with an identification of variables, which are relevant to the problem or issue. Then a contextually relevant subordinate relation is chosen. Having decided the contextual relation, a structural self-interaction matrix (SSIM) is developed based on pairwise comparison of variables. After this, SSIM is converted into a reachability matrix (RM) and its transitivity is checked. Once transitivity embedding is complete, a matrix model is obtained. Then, the partitioning of the elements and an extraction of the structural model called ISM is derived.
List of Factors related to the issue (demonetization)-
1. Fighting corruption 2. Fighting Terrorism 3. Growth in India’s economy 4. Upliftment of the poor
1 Interpretive Structural Modelling (ISM) approach: An Overview, Rajesh Attri, Nikhil Dev, Vivek Sharma,
Research Journal of Management Sciences, available at: http://www.isca.in/IJMS/Archive/v2/i2/2.ISCA-RJMS-
2012-054.pdf, last seen on 16/12/2016.
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Structural Self Interaction Matrix:
Keeping in mind the contextual relationship for each factor and the existence of a relationship between any two factors (i and j), the associated direction of the relationship is questioned. The
following four symbols are used to denote the direction of relationship between two factors (i and j):
(a) V for the relation from factor i to factor j (i.e., factor i will influence factor j)
(b) A for the relation from factor j to factor i (i.e., factor i will be influenced by factor j)
(c) X for both direction relations (i.e., factors i and j will influence each other)
(d) O for no relation between the factors (i.e., barriers i and j are unrelated).
Based on the contextual relationships, the SSIM is developed.
Structural Self Interaction Matrix
Factor j (Antecedent Set)
Fighting Corruption
Fighting Terrorism
Growth in India's economy
Upliftment of the poor
Factor i (Reachability Set) Fighting Corruption V X V Fighting Terrorism A V O Growth in India's economy X A X Upliftment of the poor A O X
Reachability Matrix:
The rules for this substitution are as follows: (a) If the (i, j) entry in the SSIM is V, then the (i, j) entry in the reachability matrix becomes 1 and the (j, i) entry becomes 0. (b) If the (i, j) entry in the SSIM is A, then the (i, j) entry in the matrix becomes 0 and the (j, i) entry becomes 1. (c) If the (i, j) entry in the SSIM is X, then the (i, j) entry in the matrix becomes 1 and the (j, i) entry also becomes 1. (d) If the (i, j) entry in the SSIM is O, then the (i, j) entry in the matrix becomes 0 and the (j, i) entry also becomes 0.
Reachability Matrix
Factor j (Antecedent Set)
Fighting Corruption
Fighting Terrorism
Growth in India's economy
Upliftment of the poor
Factor I (Reachability Set)
Fighting Corruption 1 1 1
Fighting Terrorism 0 1 0 Growth in India's economy 1 0 1 Upliftment of the poor 0 0 1
Analysis: A record of columns in which the digit ‘1’ has occurred. The readers to note that the same title heads in the Reachability Set and the Antecedent Set are guaranteed to get ‘1’ as they obviously would be affecting each other.
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REACHABILITY SET Variable Reachability Set Fighting Corruption Fighting Corruption, Fighting Terrorism,
Growth in India’s economy, Upliftment of the poor
Fighting Terrorism Fighting Corruption, Fighting Terrorism Growth in India’s economy Fighting Corruption, Growth in India’s
economy, Upliftment of the poor Upliftment of the poor Growth in India’s economy, Upliftment
of the poor
ANTECEDENT SET Variable Antecedent Set Fighting Corruption Fighting Corruption, Growth in India’s
economy Fighting Terrorism Fighting Terrorism, Growth in India’s
economy Growth in India’s economy Fighting Corruption, Fighting Terrorism,
Growth in India’s economy, Upliftment of the poor
Upliftment of the poor Fighting Corruption, Growth in India’s economy, Upliftment of the poor
LEVEL OF VARIABLES Variable Reachability Set Antecedent Set Intersection
Set Level
Fighting Corruption
Fighting Corruption, Fighting Terrorism, Growth in India’s economy, Upliftment of the poor
Fighting Corruption, Growth in India’s economy
Fighting Corruption, Growth in India’s economy
Fighting Terrorism
Fighting Corruption, Fighting Terrorism
Fighting Terrorism, Growth in India’s economy
Fighting Terrorism
Growth in India’s economy
Fighting Corruption, Growth in India’s economy, Upliftment of the poor
Fighting Corruption, Fighting Terrorism, Growth in India’s economy, Upliftment of the poor
Fighting Corruption, Growth in India’s economy, Upliftment of the poor
I
Upliftment of the poor
Growth in India’s economy, Upliftment of the poor
Fighting Corruption, Growth in India’s economy, Upliftment of the poor
Growth in India’s economy, Upliftment of the poor
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Level I is identified as Growth in India’s economy as it has the maximum points under
the column Intersection Set. The stated variable will not be taken up into calculations
for the future levels.
LEVEL OF VARIABLES Variable Reachability Set Antecedent Set Intersection
Set Level
Fighting Corruption
Fighting Corruption, Fighting Terrorism, Upliftment of the poor
Fighting Corruption
Fighting Corruption
II
Fighting Terrorism
Fighting Corruption, Fighting Terrorism
Fighting Terrorism
Fighting Terrorism
II
Upliftment of the poor
Upliftment of the poor
Fighting Corruption, Upliftment of the poor
Upliftment of the poor
II
Surprisingly, all the other Intersection Sets are getting ranked up at level II since the values in either their Reachability Set or Antecedent Set are getting exhausted with. As per the above calculations, the ISM Model is getting prepared as follows.
Observations: From the above given explanations, it is clear that the ultimate variable that is being eyed upon is the Growth in India’s economy which will be aided by the other three variables being Fighting Corruption, Fighting Terrorism and Upliftment of the Poor. Limitations: One of the key limitations of this theory is creating a basic hurdle out here as well. There indeed are multiple variables that might affect a single given phenomenon and all cannot be considered in a ISM model. Moreover, the government is in the process of compiling some concrete data which would leave the question to rest. Conclusions: With the limitations of this methodology aside, it could be mathematically interpreted as well that the foresight of this bold step taken by the current government is the development of the economy. If implemented properly, the country stands a chance to clash and survive against the titans. Statistical Data Interpretation and Analysis, especially the ISM model, again helps strongly in bridging such knowledge gaps.
Growth in India’s economy
Fighting Corruption Fighting Terrorism Upliftment of the poor
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Authored by : CS Vinita Nair Working with : Vinod Kothari & Company e-mail : [email protected]
Till date, the Companies believed that where a nominee is appointed by a security holder, the said nominee becomes the beneficial owner of the said security subsequent to death of the original holder. Even the nominator may have a similar interpretation that on his death, the securities held by him will vest with the nominee elected by him and he can rest in peace! However, Hon’ble Bombay High Court (‘Court’) referring to series of rulings in similar matters decided in the past, held in the matter of Shakti Yezdani And Anr vs Jayanand Jayant Salgonkar on 1st December, 20162 to the effect that the intent of the section 109A of Companies Act, 1956 (Act, 1956) [corresponding to Section 72 of Companies Act, 2013 (Act, 2013)] is not to create a third mode of succession. On the death of the original holder, the property in the shares gets vested to the nominee who holds the same in temporary capacity till the actual successor is identified. However, in the view of the author, this ruling will not impact the existing practice followed by Companies.
While testamentary succession and intestate succession are the two prevailing modes of succession, Companies recognized nomination as a mode of succession as well, provided the nomination was carried out in compliance with provisions of Act, 1956/ Act, 2013 and was not cancelled before the death of the original holder. This was upheld by the learned single judge in the case of Harsha Nitin Kokate v. The Saraswat Co-operative Bank Limited and Others3 on 20th April, 2010. The Court held that if the procedure of nomination prescribed under Section 190A of Act, 1956 was duly followed, the nominee would become entitled to all the rights in the shares to the exclusion of all other persons. The nominee would be made beneficial owner thereof. Upon such nomination, therefore, all the rights incidental to ownership would follow.
However, in the case of Shakti Yezdani (supra), the issue for the Court to consider was whether the decision taken in case of Kokate (supra) was appropriate. Therefore, the Court, in the instant case, was to decide and answer following 3 questions:
(i) Whether a nominee of a holder of shares or securities appointed under Section 109A of the Companies Act, 1956 read with the Bye-laws under the Depositories Act, 1996 is entitled to the beneficial ownership of the shares or securities subject matter of nomination to the exclusion of all other persons who are entitled to inherit the estate of the holder as per the law of succession?
(ii) Whether a nominee of a holder of shares or securities on the basis of the nomination made under the provisions of the Companies Act, 1956 read with the Bye-laws under the Depositories Act, 1996 is entitled to all rights in respect of the shares or securities subject matter of nomination to the exclusion of all other persons or whether he continues to hold the securities in trust and in a
2 https://indiankanoon.org/doc/90095408/ 3 https://indiankanoon.org/doc/311517/
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capacity as a beneficiary for the legal representatives who are entitled to inherit securities or shares under the law of inheritance ?
(iii) Whether a bequest made in a Will executed in accordance with the Indian Succession Act, 1925 in respect of shares or securities of the deceased sng 5 appeal-313n311.15 supersedes the nomination made under the provisions of Sections 109A and Bye-Law No.9.11 framed under the Depositories Act, 1996?
The Court, after taking into consideration the view taken by Apex Court while interpreting provisions relating to nominations under various statutes, answered the first in negative, third in affirmative and accordingly the second was also answered.
Provisions of Law
Section 72 of Act, 2013 [corresponding to Section 109A of Act, 1956]
(1) Every holder of securities of a company may, at any time, nominate, in the prescribed manner, any person to whom his securities shall vest in the event of his death.
(2) Where the securities of a company are held by more than one person jointly, the joint holders may together nominate, in the prescribed manner, any person to whom all the rights in the securities shall vest in the event of death of all the joint holders.
(3) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of the securities of a company, where a nomination made in the prescribed manner purports to confer on any person the right to vest the securities of the company, the nominee shall, on the death of the holder of securities or, as the case may be, on the death of the joint holders, become entitled to all the rights in the securities, of the holder or, as the case may be, of all the joint holders, in relation to such securities, to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner
Schedule I : Table F
Transmission of shares
23. (i) On the death of a member, the survivor or survivors where the member was a joint holder, and his nominee or nominees or legal representatives where he was a sole holder, shall be the only persons recognised by the company as having any title to his interest in the shares.
(ii) Nothing in clause (i) shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him with other persons.
24. (i) Any person becoming entitled to a share in consequence of the death or insolvency of a member may, upon such evidence being produced as may from time to time properly be required by the Board and subject as hereinafter provided, elect, either—
(a) to be registered himself as holder of the share; or
(b) to make such transfer of the share as the deceased or insolvent member could have made.
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(ii) The Board shall, in either case, have the same right to decline or suspend registration as it would have had, if the deceased or insolvent member had transferred the share before his death or insolvency.
25. (i) If the person so becoming entitled shall elect to be registered as holder of the share himself, he shall deliver or send to the company a notice in writing signed by him stating that he so elects.
(ii) If the person aforesaid shall elect to transfer the share, he shall testify his election by executing a transfer of the share.
(iii) All the limitations, restrictions and provisions of these regulations relating to the right to transfer and the registration of transfers of shares shall be applicable to any such notice or transfer as aforesaid as if the death or insolvency of the member had not occurred and the notice or transfer were a transfer signed by that member.
26. A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the company:
Provided that the Board may, at any time, give notice requiring any such person to elect either to be registered himself or to transfer the share, and if the notice is not complied with within ninety days, the Board may thereafter withhold payment of all dividends, bonuses or other monies payable in respect of the share, until the requirements of the notice have been complied with.
Clause 9.11 of Bye laws of NSDL deals with Transmission of Securities in case of Nomination4.
Analysis
As specified in the provisions of Table F, on the death of sole holder, his nominee or nominees or legal representatives where he was a sole holder, shall be the only persons recognised by the company as having any title to his interest in the shares. However, in case of transmission other than by nomination, the legal heir or legal representative shall have to produce evidence and follow the process as prescribed by the Company or RTA in order to effect the transmission. In case of transmission by nomination, the nominee automatically becomes the original holder. The nominee may simply be required to prove his/her identity. In a nutshell, where a shareholder has registered his nominee, the transmission by operation of law happens in favor of the nominee.
The said judgement provides that Section 109A of Act, 1956 does not create a third mode of succession as the Companies Act has nothing to do with the law of succession. The Court interpreted that the provisions regarding nomination were made to ensure that the estate or the rights of the deceased subject matter of the nomination are protected till the legal representatives of the deceased take appropriate steps. That the provision was enacted to ensure that the commerce does not suffer due to delay on
4 https://nsdl.co.in/downloadables/pdf/Bye-Laws%20%28Amended%20upto%20May-2016%29.pdf
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the part of the legal heirs in establishing their rights of succession and claiming the shares of a Company.
Process followed by a Company
Where the shareholder has appointed a nominee in terms of Section 72 read with Rule 19 of Companies (Share Capital and Debentures) Rules, 2014 by submitting the nomination in Form SH-13, the shares registered in his/ her name would vest in favor of the nominee, to the exclusion of their legal heir in view of the non-obstante clause in sub-section (3). Where the nominee is in possession of such share certificate, he is simply required to submit notarized copy of the death certificate of the nominator and his KYC documents. In case, such nominee is not in possession of share certificates, the nominee will have to additionally follow the process of applying for issue of duplicate share certificate.
Conclusion
The said judgement cannot regard Section 72 (3) infructuous. A company will have to comply with provisions of Act, 2013 and need not get into the modality of satisfying itself whether the nominee is the actual legal heir or a third party. In case a dispute arises in future, when the shares are claimed by legal heirs, it is for the Court to decide and Company can merely comply with the order of the Court. Therefore, in case the shares have already been transmitted in favor of the nominee and subsequently court decides the matter in favor of legal heir, the shares may be transferred from the nominee to legal heir. Where a nominee has been duly registered in accordance with provisions of the Act, in view of Section 72 (3), the Company may continue to vest the property in shares in favor of nominee.
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Authored by : CS Subramaniam Vutha Working with : Technology Law Forum e-mail : [email protected]
GM: Why do you say IPR is important for managers? In my company, the legal department takes care of patents, trademarks, copyright and the rest. Dr Techlaw: That is true of many companies. But when we talk about managing IPR for business advantage, we must ask the question: “Who generates IP assets, controls IP assets and leverages IP assets?” GM: What is the answer to that question? Dr Techlaw: Researchers generate inventions. Developers create software. Technologists develop techniques, methodologies, know-how and inventions. Most managers create and improve processes. Sales and Marketing people generate customer and market data and market studies. Safety engineers create new safety methods and apparatus. Architects and designers create new designs, drawings and blueprints. Purchase and Supply-chain managers generate vendor and sourcing information. Accountants and finance persons create cost data, pricing policies and pricing data. Quality people generate quality tests, processes and methodologies. All such work output results in some form of IPR. GM: You are right. And who controls and leverages such IPR? Dr Techlaw: Generally, the persons who generate the IPR - or their colleagues - also control and leverage such IPR. For example, inventions, techniques, processes, data, studies and the like are valuable in business because they provide some form of competitive advantage or business benefit. The lawyer does play a role in protecting such IPR –usually through patent or copyright filings or through secrecy contracts and so on. But it is the business managers who generate, control and leverage such IPR. GM: But where is the IPR in their work output? That is not yet clear to me. Dr Techlaw: Inventions can be patented. So can some innovative processes. Processes, methodologies, techniques, business and operational information, formulae, tools, designs, drawings and blueprints can be protected as trade secrets. And any idea expressed and fixed in any media is copyright material – including software. GM: And yet most managers do not even realize that they have generated IPR! They need to know a lot more about IPR than they do now – and not just leave it to the lawyers. Dr Techlaw: You got that right Mr. General Manager.
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Compiled by : CS Kaushik M. Jhaveri Practicing Company Secretary, Mumbai e-mail : [email protected]
1. MCA Notification G.S.R. 08(E), dated 4th January, 2017– Regarding exemption to
Specified IFSC Public company –under section 462 of the Companies Act,2016 In exercise of the powers conferred by clauses (a) and (b) of sub-section (1) of Section 462 and in pursuance of sub-section (2) of the said section of the Companies Act, 2013, the Central Government, in the interest of public, hereby directs that certain provisions of the Companies Act, 2013, as specified in column (2) of the Table, shall not apply or shall apply with such exceptions, modifications and adaptations as specified in column (3) of the said Table, to an unlisted public company which is licensed to operate by the Reserve Bank of India or the Securities and Exchange Board of India or the Insurance Regulatory and Development Authority of India from the International Financial Services Centre located in an approved multi services Special Economic Zone set-up under the Special Economic Zones Act, 2005 (28 of 2005) read with the Special Economic Zones Rules, 2006. For the complete text of this notification, please refer the link: http://www.mca.gov.in/Ministry/pdf/IFSC_Public_04012017.pdf
2. MCA Notification G.S.R. 9(E), dated 4th January, 2017– Regarding exemption to Specified IFSC Public Company –under section 462 of the Companies Act, 2016. In exercise of the powers conferred by clauses (a) and (b) of sub-section (1) of section 462 and in pursuance of sub-section (2) of the said section of the Companies Act, 2013, the Central Government, in the interest of public, hereby directs that certain provisions of the Companies Act, 2013, as specified in column (2) of the Table, shall not apply or shall apply with such exceptions, modifications and adaptations as specified in column (3) of the said Table, to a private company which is licensed to operate by the Reserve Bank of India or the Securities and Exchange Board of India or the Insurance Regulatory and Development Authority of India from the International Financial Services Centre located in an approved multi services Special Economic Zone set-up under the Special Economic Zones Act, 2005 (28 of 2005) read with the Special Economic Zones Rules, 2006. For the complete text of this notification, please refer the link: http://www.mca.gov.in/Ministry/pdf/IFSC_Private_04012017.pdf
3. MCA Rule no. G.S.R. (E) dated 25th January, 2017 – Notification regarding the National Company Law Tribunal (Amendment) Rules, 2016. In exercise of the powers conferred by sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the Companies (Incorporation) Amendment Rules, 2017, further to amend the Company (Incorporation) Rules, 2014 and came into force on the 30th January, 2017 For the complete text of this notification, please refer the link: http://www.mca.gov.in/Ministry/pdf/IncorporatinRules_27012017.pdf
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REQUIRED COMPANY SECRETARY
A qualified full time Company Secretary is
required at AGRILINK ASIA PRIVATE LIMITED at
Mumbai. Candidate must be proficient in English
and well versed with Corporate Laws. The
candidate should be member of ICSI with 2-3
years of experience in managing legal affairs,
legal compliance work with ROC and corporate
secretarial policies in Private sector.
Please apply to e-mail id: [email protected]
YOU MADE US PROUD
O B I T U A R Y
CS Ganesha S. Shetty
Congratulations For being appointed as a Secretary of North-
Western region of Bhartiya Janta Party,
Mumbai
CS Smitesh A. Desai
FOCUS regrets to record the sad demise of CS Smitesh Amul Desai, a fellow
member of the Institute from Valsad (Guj.) who passed away on January 9,
2017.
May the almighty give sufficient strength to the bereaved family members to
withstand the irreparable loss.
May the departed soul Rest in Peace.
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WIRCCOMMITTEES-2017
S. No. Committees / Board Chairperson for 2017
1. Executive Committee CS Prakash Pandya [email protected]
2. Accounts & Finance Committee CS Prakash Pandya [email protected]
3. Professional Development Committee (Mumbai)
CS Hitesh Kothari [email protected]
4. Professional Development Committee (Outside Mumbai)
CS Chetan Patel [email protected]
5. Training & Educational Facilities Committee CS Amit Kumar Jain [email protected]
6. Library Committee CS Amit Kumar Jain [email protected]
7. Professional Research & Publication Committee CS Ashish Karodia [email protected]
8. Information Technology Committee CS Prakash Pandya [email protected]
9. Practising Company Secretaries Committee CS Ashish Karodia [email protected]
10. Placement Committee CS Chetan Patel [email protected]
11. Public Relation Committee CS Hitesh Kothari [email protected]
12. Editor - FOCUS CS Amit Kumar Jain [email protected]
13. Infrastructure Committee CS Prakash Pandya [email protected]
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Sr. No. Chapter name Chapter In-Charge Contact No. Email id of Chapter In-
Charge
1 Ahmedabad CS Ketan Bhalgamiya 079-30025334/35 [email protected]
2 Aurangabad Mr. Subhash Bappi Sinha 0240-2451124 [email protected]
3 Bhayander Mr. Salim Ahmed 022-28183888 [email protected]
4 Bhopal Ms. Amita Malviya 0755-2577139 [email protected]
5 Goa Mr. Vasant Kerkar 0832-2435033 [email protected]
6 Indore CS Pravin Gupta 0731-4248181 [email protected]
7 Kolhapur Ms. Archana Sawant 0231-2659498 [email protected]
8 Nagpur Mr. Sudhakar 0712-2453276 [email protected]
9 Nashik Mr. Amit Kumar 0253-2509989 [email protected]
10 Navi Mumbai Ms. Lacchmi Bhatt 022-27577816 [email protected]
11 Pune Mr. Anil Tale 020-24263228/0341 [email protected]
12 Raipur Mr. Prafulla Kumar Dash 0771-3267784 [email protected]
13 Rajkot Mr. Aritra Karmakar 0281-3059646 [email protected]
14 Surat Mr. Goutam Karmakar 0261-2463404 [email protected]
15 Thane Ms. Kavita Chavan 022-25891333-3793 [email protected]
16 Vadodara Mr. Amit Kumar Nagar 0265-2331498 [email protected]
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Foundation examinations December-2016
AIR-7 AIR-10
Mr. Harshwardhan Santani Ms. Shakira Merchant
BHOPAL-OCC VADODARA-OCC
AIR-12 AIR-13
Ms. Mansi Singh Ms. Gauri Barve
WIRC-OCC GOA-OCC
AIR-15 AIR-18
Ms. Prachi Agarwal Ms. Fairy Shah
BHOPAL-OCC AHMEDABAD-OCC
AIR-20 AIR-24
Mr. Shikhar Bafna Ms. Ishika Jain
WIRC-OCC BHOPAL-OCC
AIR
-25
Mr. Arihant Gadiya AHMEDABAD-OCC
Con
grat
ulat
ions
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TEAMWIRCCHAPTERS-2017
1 Ahmedabad Chapter MCM:
Jignesh A. Shah Chairman
Ankur K. Shah Vice-Chairman
Vatan D. Brahmbhatt Secretary
Maneesha G Priyani Treasurer
Nevil R. Savjani Member
Premnarayan R Tripathi Member
Tushar D. Shah Member
Ashish C Doshi Ex-Officio
Chetan Babaldas Patel Ex-Officio
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2 Aurangabad Chapter MCM:
Vijay Harikishanji Baheti Chairman
Mahesh Singhi Vice-Chairman
Rohini Jaiprakash Haridas
Secretary
Pritesh Vijaykumar Gangwal
Treasurer
Prem Chand Agrawal Member
Rupesh Kamlakar Khokle Member
Neha Dilip Agrawal Co-opted Member
Vaibhav Wasudeorao Netke
Co-opted Member
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3 Bhayander Chapter MCM:
Rakesh Gupta Chairman
Manish Baldeva Vice-Chairman
Dhirendra Maurya Secretary
Priyanka Bajaj Treasurer
Manak Chand Daga Member
Manoj Mimani Member
Sunil Agarwal Member
Praveen Soni Ex-Officio
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4 Bhopal Chapter MCM:
Devendra Pal Singh Dhaked Chairman
Avadhesh Parashar Vice-Chairman
Pradeep Mutreja Secretary
Yogesh Khakre Treasurer
Piyush Bindal Member
Praveen Kumar Rai Member
Pranay Patel Member
Amit Narendra Kumar Jain
Ex-Officio
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5 Goa Chapter MCM:
Shilpa Dhulapkar Chairperson
Teja Gadekar Vice- Chairperson`
Shweta Kharangate Secretary
Pratika Shenvi Dessai Treasurer
Girija Nagvekar Member
Manisha Naik Member
Urjita Damle Member
Beena Mahambrey Co-opted Member
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6 Indore Chapter MCM:
Dipika Kataria Chairperson
Anurag Gangrade Secretary
Kaushal Kumar Agrawal
Treasurer
Dinesh Kumar Sharma Member
Manoj Kumar Bhandari Member
Pinky Shrivastava Member
Tanay Kasera Member
Ashish Garg Ex-Officio
Ashish Karodia Ex-Officio
Kamlesh Joshi Ex-Officio
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7 Kolhapur Chapter MCM:
Parakh Amrutlal K Chairman
Patil Padmsinh Balasaheb Vice-Chairman
Patil Snehalata Vinayak (Mrs)
Secretary
Patil Amar Dattatray Treasurer
Ghatge Sangram Shivajirao Member
Pasare Amit Dilip Member
Shinde Mukund Laxmanrao
Member
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8 Nagpur Chapter MCM:
Chanchal Vijay Loya Chairperson
Piyush Ashok Katariya Vice-Chairman
Rashmi Mitkary Secretary
Saurabh Surendra Somani
Treasurer
Manish Madhukar Rajvaidya Member
Rohit Ajay Jain Member
Tushar Sudhir Pahade Member
CA Julfesh Shah Co-opted Member
Shri M. V. Chakranarayan
Co-opted Member (Official Liquidator)
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9 Nashik Chapter MCM:
Milind Janak Gujar Chairman
Amit Sagar Kochar Vice-Chairman
Bhakti Ashish Talikot Secretary
Darshan Bharamanna Talikot
Treasurer
Sujata Rajesh Rajebahadur Member
Shilpa Shekhar Parkhi Member
Abhiram A Dugal Member
10 Navi-Mumbai Chapter MCM:
Awaneesh K. Srivastava Chairman
Santosh Kumar Singh Vice-Chairman
Sanjaya Khare Secretary
Aparna Uparkar Treasurer
Muralikrishna
Cheruvu Member
Vishnu Kumar Sah Member
Rahul Deshpande Member
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11 Pune Chapter MCM:
Chandak Pawan Ghanshyamdasji Chairman
Deosthale Omkar Vilas Vice-Chairman
Gokhale Rohit Arun Secretary
Sardesai Mandar Deepak
Treasurer
Inamdar Parag Arun Member
Atre Amit Murari Member
Wagh Hrishikesh Shirish
Member
Dixit Shilpa Kedar Ex-Officio
Lele Makarand M Ex-Officio
Deshpande Devendra Ex-Officio
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12 Raipur Chapter MCM:
Y.C.Rao Chairman
Aashish Jain Vice-Chairman
Abhishek Jain Secretary
Nupur Gupte Treasurer
Brajesh R.Agrawal Member
S. Rajeshwar Rao Member
Satish Kumar Batra Member
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13 Rajkot Chapter MCM:
Paras J. Viramgama Chairman
Tushit G. Mangukiya Vice-Chairman
Viral H. Thakrar Secretary
Abhishek C. Trivedi Treasurer
Jayesh R. Dobaria Member
Piyush R. Jethva Member
Purvi G. Dave
Member
Bhavin Mehta Co-opted Member
Nalin Ganatra Co-opted Member
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14 Surat Chapter MCM:
Kuldip Nagar Chairman
Komal Khadaria Vice-Chairperson
Arvind Kumar Yadav Secretary
Pawan Kumar Baid Treasurer
A G Shaikh Member
S Swaminathan Member
Manubhai K. Desai Co-opted Member
Ranna A. Thakkar Co-opted Member
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15 Thane Chapter MCM:
Nitin V Upadhye Chairman
Rehana Kamil Khan Vice- Chairperson
Vikas Ramchandra Chomal
Secretary
Bindi Vaishnav Treasurer
R T Rajguroo Member
Rahul P Sahasrabuddhe Member
Vala Pradyumasinh M Member
Yatin Pandit Member
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16 Vadodara Chapter MCM:
Hemant Nandaniya Chairman
Hemantkumar Valand Vice-Chairman
Susheela Maheshwari Secretary
D. S. Mahajani Treasurer
Himanshu Parmar Member
Mayur Buha Member
Swati Bhatt Ex-officio
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EIRC CS Siddhartha Murarka Chairman – EIRC e-mail: [email protected] ICSI-EIRC, House, 3A, Ahiripukur, 1st Lane Kolkata – 700019. Phones - 033-22832973/22901065/22902178 Fax - 033-22816542 e-mail: [email protected]
NIRC CS Dhananjay Shukla Chairman – NIRC e-mail: [email protected] ICSI-NIRC Building, Plot No. 4, Prasad Nagar Institutional Area, New Delhi-110 005. Phones : 011 49343000 Fax: 011-25722662 e-mail: [email protected]
SIRC CS Ganapathi G M Chairman – SIRC e-mail: [email protected] “ICSI-SIRC House”, No.9 Wheat Crofts Road, Nungambakkam, Chennai 600 034 Phones :28279898; 28268685, 28222212, e-mail: [email protected]:
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Aurangabad Chapter
CS Vijay Harikishanji Baheti, Chairman – Aurangabad Chapter hoisted thenational flag
a small gathering of members of Aurangabad Chapter and Chapter Office
Staff.
Bhopal Chapter
Programme Date: 11.02.2017 Theme: “Knowledge Quest for Corporates”
The dignitaries on the dais from right to left - CS Pranay Patel (Program Co-ordinator), CS Yogesh Khakre (Treasurer, Bhopal Chapter), CS Pradeep Mutreja (Secretary, Bhopal Chapter), CS DPS Dhakad (Chairman, Bhopal Cahpter), Shri Om Yadav (Chairman, Bhopal Development Authority) Hon’ble Chief –guest , CS Ashish Garg (Central Council Member), CS Amit K. Jain (Regional Council Member), CS Avadhesh Parashar (Vice- chairman, Bhopal Chapter)
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Mr. Vedant Pujari (Practicing Advocate) from Delhi took a session on ‘Intellectual
Property – The Key Concepts’
CS Ashish Garg (Central Council Member) from Indore took a session on ‘Corporate Laws’
panel discussion on ‘Union Budget – 2017’
Navi Mumbai Chapter
Programme Date: 22.01.2017 Theme: “New Avenues for C.S. Professionals” Name of Chief Guest / Speakers: • Mr. Alok Mishra – Company Secretary &
Compliance officer "Mahanagar Gas Limited"
• CS Khushiram Jadhwani – Managing Partner, Vidhik Legit Advocates
Ms. Pragya Srivastava – CS & Compliance Officer, Bitzar India
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From left to right: - CS Santosh Kumar Singh, Vice-Chairman, Navi Mumbai
Chapter, CS Pragya Srivastava, Speaker of the Seminar, CS Awaneesh K Srivastava,
Chairman, Navi Mumbai Chapter, CS Sanjay Khare, Secretary, and Ms. Lachhmi Bhatt,
EO-NMC.
Raipur Chapter
Programme Date: 07.01.2017 Theme: “Understanding the Capital Market: Basics of Derivatives and Raising the Curtain: Compliance Marathon of A Broking Firm” Name of Chief Guest / Speakers: CS Tushit Mangukiya - Company Secretary & Chief Compliance Officer, Marwadi Shares and
Finance Limited
CS Devang Vyas - Practicing Company Secretary, Rajkot
(From Top Left) CS Devang Vyas - Practicing Company Secretary, Rajkot || CS Tushit Mangukiya - Company Secretary & Chief Compliance Officer, Marwadi Shares & Finance
Limited || Audience || WIRC jointly with Bhayander Chapter
Republic Day Celebrations by WIRC jointly with Bhayander Chapter in presence of Chief Guest Major Mayank Bisht, SM.
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When I was a young man, I wanted to change the world. I found it was difficult to change the world, so I tried to change my nation. When I found I couldn't change the nation, I began to focus on my town. I couldn't change the town and as an older man, I tried to change my family. Now, as an old man, I realize the only thing I can change is myself, and suddenly I realize that if long ago I had changed myself, I could have made an impact on my family. My family and I could have made an impact on our town. Their impact could have changed the nation and I could indeed have changed the world. Friends, when I sat to ink a communication to all of you, the above poem waved my mind with old memories. It is often said that absolute transformation is self-transformation. It is a fact that we will be helpless in changing major and mammoth things, but changing our world of thinking in a small manner is always in our hand. This is what precisely I wanted to communicate to you through this message. Friends, often we have heard of a saying that "Small Drops of Water Makes the Mighty Ocean". I am approaching with an appeal to all my beloved professional colleagues of the Western Region of ICSI to contribute a small drop of at least Re.1 per day towards Company Secretaries Benevolent Fund (CSBF). Your this small step of contributing atleast Re.1 per day for fellow professionals can turn out to be giant leap in providing financial assistance with dignity to fellow Company Secretaries in time of crisis and when it needs the most. Contingency is always an uninvited enemy and I appeal all of you to join hands with me to make sincere attempt to contribute whole heartedly for this noble cause. I wait for your revert in this regard to help our fellow professionals at the time of need. I am ready to take up this opportunity to serve our ever giving alma meter and revered profession. But this mission can be achieved only if WE all come together and make it a mighty ocean. CSBF is always and in all ways with the Company Secretaries and let us join our hands to make CSBF more useful to our fellow professionals. It may also be noted that members who are contributing towards CSBF are eligible for tax benefit under section 80G of the Income Tax Act. It is said that a Friend in Need is a Friend indeed and we have a wonderful friend for the CS Fraternity in the form of CSBF.
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It gives me a great sense of acknowledgement that our beloved Vice President CS Makarand Lele has made the maiden donation for this noble cause. Before I conclude I must mention that as a Regional Council Member for last six years I have witnessed many families taking benefit of CSBF at the most wanted time. The on-line link for Voluntary contribution is given below. Please come forward in large numbers and support this noble cause https://www.eventavenue.com/attReglogin.do?eventId=EVT6916 Please feel free to contact the Regional Director, ICSI-WIRC in case of any clarifications. e-mail:[email protected] Thanking You in advance and Best wishes. CS Prakash K. Pandya Chairman ICSI-WIRC e-mail:[email protected] “The Grace of our good deeds is like Insurance. It will help us in our time of need without any limit”
FOCUS magazine is inviting articles and research publications from members on topic of contemporary relevance. The articles and research publications will be considered for publication based on the relevance of the topic and approval of the Editorial Board. Members who are contributing articles are entitled for PCH as per the ICSI policy. Those interested may write to us at [email protected].
- CS Amit Kumar Jain Editor - FOCUS
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Disclaimer: You are receiving this e-Newsletter since you are a member of ICSI. Views expressed in this newsletter are of authors and not necessarily of ICSI or WIRC of ICSI. ICSI or WIRC of ICSI does not verify authenticity of legal provisions contained in this newsletter. Neither authors, editors, publishers nor printers and distributors would be liable in any manner to any person by reason of any mistake or omission in this newsletter or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this work. All rights reserved. All claims, disputes or complaints will be subject exclusively to jurisdiction of courts / forums / tribunal at Mumbai only.