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Table of Contents
The Companies Act, 2013 5
Chapter 1 - Introduction to Company Law 5
Chapter 2 - Incorporation of the Company 20
Chapter 3 - Prospectus & Allotment of Securities 39
Chapter 4 - Share capital & Debentures 58
Chapter 5 – Acceptance of Deposits 84
Chapter 6 – Registration of Charge 98
Chapter 7 – Management and Administration 107
Chapter 8 - Declaration & Payment Of Dividend 136
Chapter 9 - Accounts of the company 144
Chapter 10- Audit and Auditors 168
The Indian Contract Act, 1872 186
Unit 1 - Contracts Of Indemnity And Guarantee 186
Unit 2 - Bailment and Pledge 197
Unit 3 - Agency 206
The Negotiable Instruments Act, 1881 220
General Clause Act, 1897 239
Interpretation of Statutes 258
What is a Company?
Company is one of the many structures in which business can be done. Other forms of business
structures include sole proprietor, partnership, societies, etc. The benefits offered by the
company over other forms include separate ownership from management, longevity, expandability
over generations, geographies & products & limited liability of investors.
Basic Features of a Company
i. Limited Liability
Rules: Every chapter of the Companies Act has relevant Rules running parallel to it. They contain
procedures to be followed in order to implement law.
Notifications: MCA brings out amendments in the existing law and rules through notifications in
the official gazette. They must be read along with the Act. Laws are applicable from the effective
date as mentioned in such notifications.
Definition: As per Section 2(58), Notification means a notification published in the Official
Gazette and the expression “notify” shall be construed accordingly
Judicial pronouncements: Even with laws & procedures in place, there may be disputes during
or after implementation or the lack thereof. Such disputes are handled by courts. The judgements
of the different suits are also to be read along with the Act & rules to fully understand law
governing companies.
Judicial courts that handle disputes arising from Companies Act 2013 are:
Regional Directors: RD are in-charge of the respective regions, each region comprising a number
of States and Union Territories. They supervise the working of the offices of the Registrars of
Companies and the Official Liquidators working in their regions.
Registrar of Companies: ROC are vested with the primary duty of registering companies and LLPs,
ensuring compliance with statutory requirements, maintaining registers and records, allowing
their inspection on payment of the prescribed fee, etc. ROC’s have prescribed jurisdiction within
which their powers & functions can be exercised.
ROC
RD
ROC
ROC
MCA RD
ROC
ROC
RD
ROC
Section 1 - Short Title, Extent, Commencement and Application.
Section 2 – Definitions
Section 2 of the Companies Act, 2013 is a definition section which provides the various
terminologies used in the Act.
(77) Relative, with reference to any person, means anyone who is related to another, if—
(i) they are members of a Hindu Undivided Family;
(ii) they are husband and wife; or
(iii) one person is related to the other in such manner as may be prescribed;
Rule 4 given in the Companies (Specification of Definitions Details) Rules,2014 provides of
the List of Relatives in terms of Clause (77) of section 2.
Accordingly, a person shall be deemed to be the relative of another, if he or she is related
to another in the following manner, namely -
(1) Father: Provided that the term “Father” includes step-father.
(2) Mother: Provided that the term “Mother” includes the step-mother.
(3) Son: Provided that the term “Son” includes the step-son.
(4) Son’s wife.
(5) Daughter.
(6) Daughter’s husband.
(7) Brother: Provided that the term “Brother” includes the step-brother;
(8) Sister: Provided that the term “Sister” includes the step-sister.
(78) Remuneration means any money or its equivalent given or passed to any person for services
rendered by him and includes perquisites as defined under the Income-tax Act, 1961 (43 of 1961);
(84) Share means a share in the share capital of a company and includes stock;
(85) Small company means a company, other than a public company,—
(i) paid-up share capital of which does not exceed fifty lakh rupees or such higher amount
as may be prescribed* which shall not be more than ten crore rupees; and
(ii) turnover of which as per profit and loss account for the immediately preceding financial
year does not exceed two crore rupees or such higher amount as may be prescribed*
which shall not be more than one hundred crore rupees:
Section 3 -22
Name Clause
Object Clause
MOA
Liability Clause
Capital Clause
Situation Clause
Subscription
Clause
1. Name Clause:
- Clause contains the name of the company + suitable suffix like “Pvt Ltd.”/
“Ltd.”/ “producer Co. Ltd.”/ “(OPC) Pvt. Ltd.”/other
- Name of the company should not be
● Offensive
● Identical to existing Name of another company
● Similar to existing Name of another company
● Undesirable with respect to the objects of the company
● Indicating association with Government of India (unless approved by
Government)
- Reservation of Name :
● Application must be sent to RoC in prescribed form & Fees (Note below)
● RoC, if satisfied, may reserve the name of the company for a period of
(i) 20 days from the date of approval (in case name is being reserved for
a new company) or
(ii) 60 days from the date of approval (in case of change of name of an
existing company)
During this period, the company is required to submit other documents for
incorporation like MoA, AoA etc.
Rule 9: Reservation of Name
An application for reservation of name shall be made through the web service
available at www.mca.gov.in by using [form RUN](Reserve Unique Name)
along with fee as provided in the Companies (Registration offices and fees)
Rules, 2014, which may either be approved or rejected, as the case may be,
2. Object Clause
- It contains scope of business of the company, ie, main activity and ancillary
activities.
3. Liability Clause
This clause covers details on the liability of members of the company, whether limited
or unlimited. The clause shall also state liabilities as under -
Liability
Limited
Unlimited
by
4. Capital Clause
- It states Authorised capital of the company & its division into types and number
of shares.
- For an OPC, name of the nominee is mentioned in this clause.
[NOTE: Authorised Capital means the maximum amount of the capital for which
shares can be issued by the Company to shareholders. It is decided prior to the
incorporation of the company and can be amended from time to time]
5. Domicile/Situation Clause
It contains State in which registered office of the company is situated.
6. Subscription Clause:
It states the purpose of the subscribers to incorporate the company wherein they
agree to take the shares in the company based on the number written in the
Memorandum. It contains signatures of such subscribers.
Act done against Act done against the MoA Act done against the AoA
the Companies Act
2013
7. Form of Memorandum
The memorandum of a company shall be in respective forms as outlined in Schedule I
of the Companies Act 2013.
- It contains the rules & regulations for the internal management of the company
- Model Articles have been specified in schedule I of the Act
Form Company
Table AOA of a company limited by shares
F
Table AOA of a company limited by guarantee and having share
G capital
Table AOA of a company limited by guarantee and not having share
H capital
Table I AOA of an unlimited company and having share capital
Table AOA of an unlimited company and not having share capital
J
According to this doctrine, all persons dealing with a company are deemed (or
"construed") to have knowledge of the company's MoA and AoA. The doctrine of indoor
management is an exception to this rule.
It means that persons dealing with the company need not inquire whether the internal
proceedings relating to the contract have been followed as long as they are satisfied that
the transaction is as per the MoA/AoA
This doctrine protects external stakeholders.
Exceptions to this Doctrine:
● Negligence on part of external party
● External party relies on a Forged document (Co. not responsible)
● External party has prior knowledge of irregularity
Comparison between the above two doctrines: Whereas the doctrine of constructive notice
protects a company against outsiders, the doctrine of indoor management protects outsiders
against the actions of a company.
MoA, AoA, Agreement executed or resolution passed by the company or board of directors.
Following documents must be filed with RoC under whose jurisdiction the company functions:
i. MoA signed by all subscribers
ii. AoA signed by all subscribers
iii. Declaration that all requirements of the act & rules have been satisfied by
● Person named in AoA : Directors, secretary, Manager and
● Persons engaged in formation of company: advocate/ CA/CS/cost accountant
Once registered, MoA & AoA shall bind the company & members. All monies payable by any
member to the company under MoA/AoA, shall be debt due to company.
Section 10A - Commencement of business, etc.
(Section 11 Omitted)
Section 12 - Registered office of the company
iv. Labelling:
The company’s name with registered office address shall be mentioned outside the
office, on business cards, bill head, official publications, seal (if any), business card
etc.
v. If name is changed in last 2 years, former name should be mentioned with the new
name.
vi. An OPC, must write in “One Person Company” in brackets under its name wherever it
is printed.
vii. Change of registered office:
ix. If RoC has reasonable cause to believe that company is not carrying on any business,
it may cause physical inspection of registered office after which it may initiate action
for removal of name of company from register under chapter XVIII
Special resolution In General Meeting is required to alter any clause of MoA. Other
requirement with respect to changes in these clauses are as under:
I. Name Clause:
- Central government (RD) Approval along with
- Special Resolution in general meeting
- No approval of CG required to merely delete/add ‘Private ‘ after name of company
- No Alteration allowed [Companies (Incorporation) Rules, 2014] if:
● Annual return or financial statement not filed with RoC
● Amount due on matured Deposit, Debentures or interest due thereon not
paid
- RoC shall enter into register and issue a fresh ‘Certificate of Incorporation’
Other requirement for change of registered office from one state to another:
- Application must be sent to CG (RD) who shall dispose it off in 60 days
- CG (RD) shall verify that
● All debts have been discharged/provided for
● Adequate security has been provided for discharge of debts
After Alteration of name: Notify RoC about such change along with:
- Copy of resolution
- Order of CG (RD)
Default in compliance of direction of CG (RD):
● Central Government shall allot a new name to the company in such manner as
may be prescribed and
● Registrar shall enter new name in register of companies in place of old name and
issue a fresh certificate of incorporation with new name, which the company
shall use thereafter
● Provided that it shall NOT prevent a company from subsequently changing its
name in accordance with the provisions of section 13
RoC shall issue fresh certificate of Incorporation & make suitable changes in MoA
Section 17 - Copies of MoA, AoA, agreement, resolution u/s 117 given to Members
- Company cannot obtain (by itself or through nominee) shares of holding company
- Holding company cannot allot/transfer shares to its subsidiary company
- Exception:
i. Shares held by subsidiary before it became subsidiary of holding (Voting: NOT
allowed)
ii. Shares held as trustee (Voting: Allowed)
iii. Shares held as legal representative of deceased member of holding company
(Voting: Allowed)
Documents are delivered from the company to various stakeholders and vice versa to conduct
business in effective manner. The timing and mode of delivery are very crucial to avoid
disputes/confusions in future. Hence, the Act has prescribed the following modes:-
- Speed post
- Registered post
- Courier
- Physical delivery
Definition: As per Section 2(53), Manager means an individual who, subject to the
superintendence, control and direction of the Board of Directors, has the management of
the whole, or substantially the whole, of the affairs of a company, and includes a director
or any other person occupying the position of a manager, by whatever name called, whether
under a contract of service or not.
Definition: As per Section 2(54), Managing Director means a director who, by virtue of the
articles of a company or an agreement with the company or a resolution passed in its general
meeting, or by its Board of Directors, is entrusted with substantial powers of management
of the affairs of the company and includes a director occupying the position of managing
director, by whatever name called.
Explanation — For the purposes of this clause, the power to do administrative acts of a
routine nature when so authorised by the Board such as:
● the power to affix the common seal of the company to any document or
● to draw and endorse any cheque on the account of the company in any bank or
● to draw and endorse any negotiable instrument or
Company having
common seal
Yes No
authorisation shall
be made by
Company may authorise
any person in writing in
India/Outside India to
use the seal for
specified matters.
2 directors or where the company has
company secretary, then
A Director + CS
Companies have been classified into different sub types under the Act to serve different
business needs.
Few types of companies are:
Government Company
It is a company registered under the Indian Companies Act in which not less than 51% of paid
up share capital is held by the central government or any state government or partly by
central government partly by one or more state governments,
Explanation - For the purposes of this clause, the "paid up share capital" shall be construed
as "total voting power", where shares with differential voting rights have been issued.
● Section 8 Companies are formed to serve the charitable purpose for promoting commerce,
art, science, sports, education, research, social welfare, religion, charity, protection of
environment or any such other object.
● Entire profits are to be reinvested to promote the objects
● No dividend can be paid to its members
● Any private/public company requires license from CG to operate as a Section 8 Company
● It cannot use ‘Pvt Ltd.’ Or ‘Ltd.’ after its name. Its name usually ends with words like
foundation, trust, institution etc. However, it enjoys all the privileges of a limited
company.
● Firm may be its member
● Alteration of MoA or AoA can be done with CG approval
● Reconversion into a private/public/other kind of company requires Special Resolution in
general meeting& Central Government Approval
● Prior notice for general meeting: 14 days instead of 21 days
● Revocation of Licence by CG may be done if:
- Section 8 Conditions contravened
Section 23-42
Note:
i. Right Issue: It is a group of rights offered to existing shareholders to purchase
additional stock shares in proportion to their existing holdings.
ii. Bonus Shares: It is an offer of free additional shares to existing shareholders in
proportion to their existing holdings. (also known as ‘capitalization of profits’)
iii. Private Placement: It means the sale of securities to a relatively small number of
selected investors.
iv. Public Offer: It is the offering of securities of a company or a similar corporation to
the public. In order to do that the securities are to be listed on a stock exchange.
Explanation:
"Public offer" includes initial public offer (IPO) or further public offer (FPO) of
securities to the public by a company, or an offer for sale of securities (OFS) to the
public by an existing shareholder, through issue of a prospectus.
FPO is an issue of
additional shares made by OFS is a mechanism
a company that is already where promoters/existing
Offering the stock of a publicly listed and has shareholders in a listed
company on a public stock gone through the IPO company sell
exchange for the first process. their shares directly to the
time.
public in a transparent
manner.
Note:
Securities has been defined u/s 2(81) as Securities means the securities as defined in clause
(h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956).
In crux, the definition in SCRA includes shares, debentured, derivatives, Mutual Fund,
Collective investment scheme securities, Government securities, right in securities etc.
Thus, in this chapter, the word security must be construed to include allotment of all the
above types of instruments.
PROSPECTUS
● It should be dated. The date indicated in the prospectus shall be deemed to be the
date of its publication.
● It should be Signed by every person who is named therein as a director or proposed
director of the company or by his duly authorised attorney.
● It should state such information and set out such reports on financial information as
may be specified by the SEBI in consultation with the CG
● Declaration of Compliance: It should contain declaration stating that nothing in the
prospectus is contrary to the provisions of this Act, the Securities Contracts
(Regulation) Act, 1956 and the Securities and Exchange Board of India Act, 1992 and
the rules and regulations made thereunder
● Section 26(1) Not applicable:
● Delivery of copy to ROC: On or before the date of its publication, Copy of prospectus
should be delivered to the Registrar for filing.
● Validity of prospectus: Upto 90 days from the date on which a copy thereof is delivered
to the Registrar
● The promoters of every public company making a public offer of any convertible
securities may hold such securities only in dematerialised form:
● Provided that the entire holding of convertible securities of the company by the
promoters held in physical form up to the date of the initial public offer shall be
converted into dematerialised form before such offer is made and thereafter such
promoter shareholding shall be held in dematerialized form only.
2. Every unlisted public company making any offer for issue of any securities or buyback of
securities or issue of bonus shares or rights offer shall ensure that before making such
offer, entire holding of securities of its promoters, directors, key managerial personnel
has been dematerialised in accordance with provisions of the Depositories Act 1996 and
regulations made there under.
4. Every unlisted public company shall facilitate dematerialisation of all its existing securities
by making necessary application to a depository as defined in clause (e) of sub-section (1)
of section 2 of the Depositories Act, 1996 and shall secure International security
Identification Number (ISIN) for each type of security and shall in-form all its existing
security holders about such facility.
8. Every unlisted public company governed by this rule shall submit Form PAS-6 to the
Registrar with such fee as provided in Companies (Registration Offices and Fees)
Rules,2014 within sixty days from the conclusion.of each half year duly certified by a
Company secretary in practice or chartered accountant in practice.
(8A) The company shall immediately bring to the notice of the depositories any difference
observed in its issued capital and the capital held in dematerialised form.
9. The grievances, if any, of security holders of unlisted public companies under this rule
shall be filed before the Investor Education and protection Fund Authority.
10. The Investor Education and protection Fund Authority shall initiate any action against a
depository or participant or registrar to an issue and share transfer agent after prior
consultation with the securities and Exchange Board of India
11. This rule shall not apply to an unlisted public company which is:-
(a) a Nidhi
(b) a Government company or
(c) a wholly owned subsidiary.
Company making public offer and Class of unlisted companies Other company [Sec
prescribed companies [Sec 29(1)] as may be prescribed [Sec 29(2)]
29(1A)]
Issue shares Rule 9: issuing demat shares or
in Rule 9A: Securities Converting physical
Promoters to
Dematerialis Unlisted to be held shares to demat
ensure
ed form + public or (Optional)
securities are
comply compani transferred
held in
Depositories es in
dematerialsed
Act 1996 form demateriali comply Depositories Act
sed form 1996
⮚ Meaning: It is the prospectus with the shelf life, ie, a validity period. In this type of
public offering, company is allowed to offer and sell securities to the public without
a separate prospectus for each act of offering.
⮚ Max Period of validity: 1 year
⮚ Information memorandum: Every subsequent offer requires issuing an ‘information
memorandum’ containing the details of changes that took place from the previous
issue.
o Financial changed
o New charges created
o Other material facts
⮚ If Advance is received for further shares before the issue of Information
memorandum: then,
⮚ Meaning: In this kind of public offering, the Price and quantity of shares to be allotted
are not included in prospectus. Thus the prospectus is incomplete.
⮚ Filling with RoC: Red herring prospectus must be filled with RoC at least 3 days prior
to issuing to public.
⮚ After closing of the offer: Upon closing of the offer, the prospectus stating the total
capital raised (by debt/share capital) and closing price of securities along with other
prescribed details, shall be filled with RoC and SEBI.
⮚ Meaning: Shares of existing shareholder are sold off in public to new shareholders. It
does not involve issue of new securities.
⮚ Objective: To dilute promotors’ holding or provide exit route to venture capitalists.
⮚ The document inviting public to purchase such shares shall be deemed prospectus and
all provisions applicable to normal prospectus would apply.
⮚ All details u/s 26 shall be included in prospectus
⮚ Deemed OFS:
o If offer to sell securities to public is made within 6 months from original
allotment or
o At the time of making offer to public, the whole consideration has not been
received on securities
⮚ Members may offer whole or part of their shareholding for sale to public provided BoD
approves.
⮚ Document offered to public inviting subscription shall be Deemed Prospectus. All
provisions applicable to normal prospectus shall apply.
⮚ Individuals/Body corporates whose shares are being OFS, shall
o authorize company to do the same
o reimburse company of all related expenses
(1) The provisions of Part I of Chapter III namely "Prospectus and Allotment of Securities" and
rules made there under shall be applicable to an offer of sale referred to in section 28 except
for the following, namely:-
(a) the provisions relating to minimum subscription;
(b) the provisions for minimum application value;
(c) the provisions requiring any statement to be made by the Board of directors in respect
of the utilization of money; and
(d) any other provision or information which cannot be compiled or gathered by the
offeror, with detailed justifications for not being able to comply with such provisions.
(2) The prospectus issued under section 28 shall disclose the name of the person or persons
or entity bearing the cost of making the offer of sale along with reasons.
(1) Where the company has raised money from public through prospectus and has any
unutilized amount out of the money so raised, it shall not vary the terms of contracts referred
to in the prospectus or objects for which the prospectus was issued except by passing a
special resolution through postal ballot and the notice of the proposed special resolution
shall contain the following particulars, namely:-
(a) the original purpose or object of the Issue;
(b) the total money raised;
(c) the money utilised for the objects of the company stated in the prospectus;
(d) the extent of achievement of proposed objects(that is fifty percent, sixty percent,
etc);
(e) the unutilised amount out of the money so raised through prospectus,
(f) the particulars of the proposed variation in the terms of contracts referred to in the
prospectus or objects for which prospectus was issued;
(g) the reason and justification for seeking variation;
(h) the proposed time limit within which the proposed varied objects would be achieved;
(i) the clause-wise details as specified in sub-rule (3) of rule 3 as was required with
respect to the originally proposed objects of the issue;
(j) the risk factors pertaining to the new objects; and
(k) the other relevant information which is necessary for the members to take an
informed decision on the proposed resolution.
(2) The advertisement of the notice for getting the resolution passed for varying the terms
of any contract referred to in the prospectus or altering the objects for which the prospectus
was issued, shall be in Form PAS-1 and such advertisement shall be published simultaneously
with dispatch of Postal Ballot Notices to Shareholders.
(3) The notice shall also be placed on the web-site of the company, if any.
I. Listing of securities
⮚ Before any public offer, the companies must apply to SEBI & Recognized stock
exchanges for listing. Public offer cannot be made without listing.
⮚ Prospectus must contain details of stock exchange on which securities shall be listed
⮚ Separate bank A/c must be maintained by the company to receive monies from offer
and adjust refunds (Not company’s general bank account).
Meaning: when the ownership of shared is given in the name of shareholder and entry is
made in the register of members. It brings shares into existence.
Conditions prescribed for allotment of securities by company:
i. Minimum subscription amount stated in the prospectus and application money is
received
ii. Amount payable on application is not less than 5% of nominal value of securities.
iii. If application money and minimum subscription is not received within 30 days of issue
of prospectus (or longer period prescribed by SEBI), all moneys received must be
refunded.
If the stated minimum amount has not been subscribed and the sum payable on application
is not received within the period specified therein,
● then the application money shall be repaid within a period of fifteen days from the
closure of the issue and
● if any such money is not so repaid within such period, the directors of the company
who are officers in default shall jointly and severally be liable to repay that money
with interest at the rate of 15% p.a.
The application money to be refunded shall be credited only to the bank account from which
the subscription was remitted.
(1) Whenever a company having a share capital makes any allotment of its securities, the
company shall, within thirty days thereafter, file with the Registrar a return of allotment
in Form PAS-3, along with the prescribed fee.
(2) There shall be attached to the Form PAS-3 a list of allottees stating their names, address,
occupation, if any, and number of securities allotted to each of the allottees and the list
shall be certified by the signatory of the Form PAS-3 as being complete and correct as per
the records of the company.
(3) In the case of securities (not being bonus shares) allotted as fully or partly paid up for
consideration other than cash, there shall be attached to the Form PAS-3 a copy of the
contract, duly stamped, pursuant to which the securities have been allotted together with
any contract of sale if relating to a property or an asset, or a contract for services or other
consideration.
(4) Where a contract referred to in sub-rule (3) is not reduced to writing, the company shall
furnish along with the Form PAS-3 complete particulars of the contract stamped with the
same stamp duty as would have been payable if the contract had been reduced to writing
and those particulars shall be deemed to be an instrument within the meaning of the Indian
Stamp Act, 1899 (2 of 1899), and the Registrar may, as a condition of filing the particulars,
Any person
Knowingly/recklessly
Promises/conceals deliberately/ misleads
Another person to enter into
Acquiring or underwriting securities
Enter into any agreement based on
security price fluctuation to gain profit
Get credit from bank or financial
institute
Liable
u/s 447
⮚ Company must state the provisions and penalties specified u/s 38 in the prospectus
⮚ Amount received through disgorgement of gain shall be credit to IEPF Account
[Investor Education & Protection Fund]
⮚ Disgorgement of gain means recovering gains made unfairly by seizure/disposal of
such securities.
Meaning: These are instrument issued to the foreign investors to raise more capital. The
share capital of the company is packed into depository receipts with suitable denomination
and value to fit the needs of the foreign investor and market.
Relevant Rules: Companies (Issue of Global Depository Receipts) Rules, 2014
Conditions:
✔ Company is eligible as per FEMA Rules
✔ BoD Resolution in board meeting
✔ Special Resolution in general Meeting
✔ RBI regulations must be complied
✔ Domestic depository holds the original securities, which are issued in the name of
international depositories
✔ BoD shall appoint a Practicing CA/CS/Cost accountant to oversee issue and
compliances
✔ Listing of GDR: on international stock exchange
Section 43-72
Share Capital
Preference Shares:
Equity Shares: Allowed to vote only if:
-get right to vote in GM. -Resolution directly affects them
-In Poll- the vote is -Winding up resolution
proportion to the paid
up share capital value. -Repayment/reduction of Preference
share capital
In above cases, voting in proportion to
paid up capital.
If both vote in GM, then - If dividend remains unpaid for 2 or
the same proportion more years then they CAN VOTE on all
vote as to paid up capital resolutions.
allowed.
Conditions:
1) AOA must authorise variation (else, alter AoA u/s 14). It is not necessary to alter AoA if
contract for the issue of shared authorise for variation of rights.
2) Special Resolution in Class Meeting of such shareholders whose rights are being affected.
3) Even after SR is passed, dissenting shareholders can apply to NCLT within 21 days of SR.
Minimum shares required to be held by applicants : 10% of such amount of shares
4) NCLT’s order must be followed by the company & filed with RoC within 30 days.
If the shares of the company are partly paid up, then the company may call for the
remaining amount due on such shares at any time. This is known as “calls” on shares.
Section 49 Company must make calls uniformly to all shareholders in one class of shares.
(It cannot call for different amount of calls from different shareholders in the same class
of shares)
For the purposes of this section, shares of the same nominal value on which different
amounts have been paid-up shall not be deemed to fall under the same class.
Section 50 Shareholder can make advance payment for money due on calls/ subscription
only if it is so authorised by AoA. However, no additional rights are allowed to such
shareholder.
Section 51 Dividend must be paid based on number of shares. However, it may be paid
proportional to paid up value if AoA authorise.
The purpose for giving discount or premium on shares is to fairly price the shares based
on its demand & supply.
Section 52 - Security premium
● Whenever shares are issued at a premium, such access amount must be transferred
to ‘Security Premium A/c’
● This section N/A on Debentures & bonds.
● Such ‘Security Premium A/c’ must be used only for the following purposes
i. Issuing bonus shares
ii. Buy back of shares
iii. Writing off preliminary expenses
iv. Writing off discount on issue of shares/ debentures
v. Providing for premium on redemption of preference shares/debentures
vi. Writing off commission paid on issue of shares/debentures
Section 53 - Issuing shares at discount
redeemable
cumulative convertible
Participatory
5. Redemption cannot be done unless preference shares are fully paid up.
6. If the redemption is out of profits, then after redemption, company must transfer
nominal value of shares redeemed to Capital Redemption Reserve A/c (used to issue
bonus shares only)
● Transfer Vs Transmission
Sec 56 applies to both transfer and transmission of securities. Differences between
the two terms are:
Basis Transfer of Shares Transmission of Shares
Nature of transfer Voluntary act between parties Operational by law
of title in shares
Example A decides to sell shares to B for In case of Insolvency, lunacy, death, or
20000 Rs. They execute a inheritance, if shares were held by the
transfer deed for the same and owner who became insolvent, lunatic or
pay stand duty on the deed. Both died respectively, then the title of
parties sign and thus transfer of shares automatically passes in the
title in shares takes place. hands of official assignee or receiver or
administrator or legal representative.
Consideration Present Not applicable
between parties
● Forged Transfer
It means use of fake identity to obtain shares/warrants/other rights from the company.
Punishment:
Imprisonment 1 year -3 year
AND
Fine 1L – 5L
AoA must authorise before any alteration. RoC must be intimated within 30 days of
alteration.
Section 62 - Right Issue/Preferential Allotment
Unlisted company issuing shares under ESOP Scheme must follow Rule 12 of the Companies
(Shares and Debentures) Rules, 2014. Some of the important provisions are as under:
Rule 12 (1): Issue of Employees’ Stock Option Scheme has been approved by the shareholders
of the company by passing a special resolution.
The term ‘Employee’ means:
(a) a permanent employee of the company who has been working in India or outside India; or
(b) a director of the company, whether a whole-time director or not but excluding an
independent director; or
(c) an employee as defined in clause (a) or (b) of a subsidiary, in India or outside India, or of
a holding company of the company; but does not include-
(i) an employee who is a promoter or a person belonging to the promoter group; or
(ii) a director who either himself or through his relative or through anybody corporate,
directly or indirectly, holds more than ten per cent of the outstanding equity shares
of the company:
Provided that in case of a startup company, the conditions mentioned in sub-clauses
(i) and (ii) shall not apply up to ten years from the date of its incorporation or
registration.
Rule 12 (2): Company shall make the specified disclosures in the explanatory statement
annexed to the notice for passing of the resolution.
Rule 12 (3): Companies granting option to its employees pursuant to Employees Stock Option
Scheme will have the freedom to determine the exercise price in conformity with the
applicable accounting policies, if any.
Rule 12 (6):
(a) There shall be a minimum period of one year between the grant of options and vesting
of option:
Provided that in a case where options are granted by a company under its ESOP
Scheme in lieu of options held by the same person under an ESOP Scheme in another
company, which has merged or amalgamated with the first mentioned company, the
period during which the options granted by the merging or amalgamating company
Rule 12 (8):
(a) The option granted to employees shall not be transferable to any other person.
(b) The option granted to the employees shall not be pledged, hypothecated, mortgaged
or otherwise encumbered or alienated in any other manner.
(c) Subject to clause (d), no person other than the employees to whom the option is
granted shall be entitled to exercise the option.
(d) In the event of the death of employee while in employment, all the options granted
to him till such date shall vest in the legal heirs or nominees of the deceased
employee.
(e) In case the employee suffers a permanent incapacity while in employment, all the
options granted to him as on the date of permanent incapacitation, shall vest in him
on that day.
(f) In the event of resignation or termination of employment, all options not vested in
the employee as on that day shall expire. However, the employee can exercise the
options granted to him which are vested within the period specified in this behalf,
subject to the terms and conditions under the scheme granting such options as
approved by the Board.
● Meaning: It means issue of shares for FREE to the existing shareholders in proportion
to their share capital.
● Source: Company may issue Bonus shares out of its
- Free Reserve
- Secured Premium A/c
- Capital Redemption Reserve A/c
Prohibition: Revaluation reserve cannot be used
● Other conditions:
- AoA must authorise the issue
- BoD approval in board meeting
- Ordinary resolution in General Meeting
If an unlimited company having share capital converts itself into a limited company then it
shall maintain reserve capital in any of the following ways:
Increase nominal value of the shares that can be Hold some part of uncalled capital in reserve to
called up only at the time of winding up. be called only at the time of winding up.
Conditions:
● Applicability of this section: Company limited by shares or company limited by
guarantee but having share capital
● AoA must authorise
● Special resolution in General Meeting
● NCLT permission required
● Company should not have any due & payable Interest & principle on deposits
● Tribunal notifies CG, Creditors & SEBI who may send recommendations/objections in
this regards. Within 3 months, tribunal passes order as deem fit.
● Company must file with RoC within 30 days of Order: A copy of order & Copy of SR.
● NCLT Order must be published in newspaper
● If Officer conceals/ misrepresents names of creditors to NCLT then : Section 44 shall
be attracted
Section 67 - Restriction on purchase by the company or giving loans by it for
purchase of its shares
● Any company having share capital cannot buy its own shares or shares of its holding
Company (Exception: reduction of share capital as per Companies Act)
● Any public company cannot lend money/give financial assistance to any person to
purchase its own shares/ shares of its holding company
● Exception to above:
- Banking Companies
- Scheme approved by special resolution for employees
- Loan to employees for purchase of shares of company up to 6 months of their
annual salary 🡪 Disclosure in board report must be made if such employees have
not exercised voting rights.
● Section 67 shall not apply to a private company
a. in whose share capital no other body corporate has invested any money;
Conditions:
● Sources of Buy back:
- Free profits/reserves
- Security premium Account
- Proceeds of fresh issue (not the same class of shares)
● AoA must authorise
● Special resolution must be passed in general meeting
Exception: If buy Back is up to 10% of paid up share capital and free reserves & BoD
resolution is passed to approve it
● Maximum Buy Back in a financial year: 25% of aggregate Paid up share capital & Free
Reserve
● Maximum Buy Back of Equity shares in a financial year: 25% of total equity Paid up
share capital
● Post Buy Back
(Secured Debts + unsecured Debts)
Less than 2
Paid up share capita + free reserve
● Share must be fully paid up
● Listed companies must follow SEBI regulations
● Notice of the General meeting must include explanatory statement containing
material details like
- Need for Buy Back of shares
- Class of shares being BB
- Amount
- Time limit for completion
- Other material facts
● Where the company has bought back its own shares out of free reserve or securities
premium account, then Nominal value of such shares bought back must be transferred
to CRR A/c.
● Not Applicable: if proceeds of fresh issues are used for BB
● CRR is used only to issue Bonus shares
Section 71 – Debentures
Types of Debentures
convertible Non
convertible
secured
redeemable
Mandatory or partially
optionally convertible or
Unsecured convertible fully convertible
irredeemable
● Convertible debentures can be issued by passing special resolution in General Meeting
● At the time of issue of debentures, the company must create a ‘Debenture
Redemption Reserve A/c’ out of the free profits of the company that can be used only
for redemption of debentures.
● Debentures with voting rights cannot be issued
● To issue secured debentures the company must follow conditions prescribed in
Companies (Share capital & Debenture) Rules, 2014
● Sec 71(5): If company issues debentures to more than 500 subscribers, it can do so
only after appointing a Debenture trustee as per prescribed rules.
● Sec 71(15): After issue of debentures 🡪 Companies shall file Return of allotment
(Form No PAS-3) with RoC within 30 days of allotment
Rule 18(1): The company shall not issue secured debentures, unless it complies with the
following conditions, namely:-
Section 73-76A
includes any receipt of money by way but does not include such categories
of deposit or loan or in any other of amount as may be prescribed in
form, by a company consultation with the RBI
Deposits can
be Amounts not considered deposits as per Companies
(Acceptance of Deposits) Rules, 2014:
Secured Unsecured
(against
mortgage/pledg
e of a property)
Section 73 Section 76
member of the company who any person who has made a deposit
has made a deposit with the with a public company u/s 76 of the
company u/s 73 Act 🡪 ‘Eligible Company’
Any company may raise deposit from its members provided following conditions along
with prescribed rules are satisfied.
No company shall invite, accept or renew deposits under this Act from the public except
in a manner provided under this Chapter
Exceptions:
-Banking Co.
-NBFC (non- banking financial company)
-Registered Housing Finance Co.
-Other companies prescribed by government
Conditions:
1. Resolution at GM
2. RBI/CG regulations shall be followed
3. Circular must be sent to members stating-
✔ financial position of company,
✔ credit rating,
✔ Number of depositors
✔ Amount due to be paid to earlier depositors
✔ Other prescribed details
4. Circular must be filed with RoC within 30 days before the date of issue of circular
5. ‘Deposit Repayment Reserve A/c’ must be opened in a separate scheduled bank and
20% of deposits maturing in a FY and next FY shall be deposited in it. It shall not be
used by the company for any purpose other than repayment of deposits.
6. Security shall be provided on deposits raise. Otherwise such deposits shall be mentioned
as ‘unsecured deposits’ in the circular.
7. Company must certify that the company has not committed any default in the
repayment of deposits accepted either before or after the commencement of this Act
or payment of interest on such deposits and where a default had occurred, the company
made good the default and a period of five years had lapsed since the date of making
good the default.
Above points N/A- Private Company if deposits raised are up to the [paid up capital +
free reserve] of the company
8. Relevant rules must be complied with 🡪 Companies (Acceptance of deposit) Rules, 2014
✔ Only “eligible public companies” are allowed to accept deposits from public along
with members (refer definition is chart on earlier pages)
✔ Conditions :
o Compliance of conditions u/s 73
o Compliance of prescribed rule🡪 Companies (Acceptance of deposit) Rules, 2014
o Obtain credit rating from recognised credit rating agency at the time of invitation of
deposits from the public which ensures adequate safety and the rating shall be obtained
for every year during the tenure of deposits
o Within 30 days of acceptance of deposit 🡪 charge must be created on assets of the
company (value of security shall not be less than the amount of deposit accepted)
o Other conditions same as on any other deposit (remaining chapter applies mutatis
mutandis)
1. Period
A company cannot accept the following deposit
● Demand deposit
● Deposits payable within 6 months or after 36 months from the date of acceptance.
Exception- Provided that a company may, for the purpose of meeting any of its
short-term requirements of funds, accept or renew such deposits for repayment
earlier than six months from the date of deposit or renewal, as the case may be,
subject to the condition that-
(a) such deposits shall not exceed ten per cent. of the aggregate of the Paid-up
share capital, free Reserves and securities premium account of the company,
and
(b) such deposits are repayable not earlier than three months from the date of such
deposits or renewal thereof
Sources From Directors & From Directors & From Directors & Members
Members Members & Public
5. Other points
● Where depositors so desire, deposits may be accepted in joint names not
exceeding three, with or without any of the clauses, namely, "Jointly", "Either
or Survivor", "First named or Survivor", "Anyone or Survivor"
● Credit rating
(a) Every eligible company shall obtain, at least once in a year, credit rating for
deposits accepted by it and a copy of the rating shall be sent to the Registrar
of Companies along with the return of deposits in Form DPT-3.
(b) The credit rating referred to in clause (a) shall not be below the minimum
investment grade rating or other specified credit rating for fixed deposits,
from any one of the approved credit rating agencies as specified for Non-
Security [Rule 6]
After acceptance of deposit, every company within 30 days from such acceptance must
provide a security either by way of Charge or by way of Mortgage. The amount of
security must not be less than the amount of Unsecured Deposits.
Trustee [Rule 7]
● Companies accepting deposits must appoint one or more trustees at least 7 days
before issuing of circular.
If there is Default in paying deposit amount u/s 74 in allowed time & intent to fraud is
proved then
(Section 77 to 87)
Introduction:
Meaning: In order for the company to take loan from any financial institute/bank, it may be
required to keep any of its asset as security. Fetching a loan on basis of the property is
termed as “creating a charge on asset”. This gives protection to the financial institute/bank.
If the loan is not paid in due time, they have the right to sell the asset and recover the
amount due.
Types of Charges
Meaning Fixed charge refers to a charge thatFloating charge refers to a charge that
can be ascertained with a specific is created on the assets of circulatory
asset, while creating it. nature.
Registration Compulsory
of Compulsory
charge
Dealing in asset The company has no right to deal The company can use or deal with asset,
with the property, but subject to until crystallization.
certain exceptions.
Registration of Charge:
Meaning: Getting the details of charge recorded with the RoC for public record.
Need:
-At the time of winding up of the company, the creditor is treated as secured only
if the charge is registered. Otherwise, they are clubbed with unsecured creditors.
- It creates public record of loans taken on any asset of the company
- Binds parties to contract
- States rights and obligation of parties.
Note: At the time of repayment of loan, the date of creation of charge is relevant to
determine which creditor has first charge. The date of registration of charge is not to be
considered unless it’s winding up.
Chargeholder RoC
Company
Registration Procedure
Charge created
Register Charge within 30 days of creation with instument of charge, charge particulars signed by both
company and chargeholder & prescribed fees paid by company.
NO
Yes
Charge created before 2/11/2018: RoC may allow Charge created after 2/11/2018: RoC may
extended period of 300 days from creation of allow extended period of 60 days from
charge, on payment of additional fees. creation of charge, on payment of additional
fees.
No NO Yes
Yes
Asset
Intangibl Outside
Tangible In India
e India
● Its companies’ responsibility to register, hence all cost & fees are to be borne by
company.
Note:
1. Registration date does not affect rights of parties prior to registration.
Meaning: Variation in the terms of the charge creation agreement. Eg: Change of interest
rate or repayment schedule, inclusion of second or third charge on the asset, partial release
of charge, etc.
Modification required mandatory registration by the company as per section 77 provision
(mutatis mutandis). “Certificate of registration for Modification of charge” is issued by RoC.
Sec:80 - Person Acquiring Charged Property
Person acquiring charged property where such charge is registered with the RoC, shall be
deemed to have knowledge of the charge from the date of registration of charge.
If the company fails to register charge within 30 days of creation, the chargeholder can apply to RoC with instrument of charge
in prescribed form & fees.
Roc Shall intimate company and give a 14 day period to either register the charge by themselves or object against registration by
chargeholder.
Within 14 days
Objects registration
NO reply
Company may
Register charge by
themself
RoC shall register the charge. Chargeholder shall be
entitled to recover any fees payable for registration
from the company.
Register of Charges
● RoC maintains register of charges for every company containing details of charges on
each asset, date of creation, amount, charge holder’s details etc.
● Register is open for inspection by anyone on payment of fees.
● M.C.A.’s online site contains register of charges (Deemed RoC’s register)
Satisfaction of Charge
Meaning: Where is the secured debt due is paid off/settled and thus the asset no longer is
subject to charge.
Procedure: Sec: 83 - Power of RoC to enter in the Register about Satisfaction of
Charges
If the company has not informed the satisfaction of charge to the RoC & RoC receives
evidence of satisfaction of charge from other source.
RoC will enter in the Register of Charges himself as a memorandum and within 30 days,
intimate affected parties.
Other Provisions
⮚ Company: Fine – 5L
⮚ Officer in default:
▪ Fine - 50K
⮚ Wilfully furnishing incorrect information/ knowingly suppresses material facts
required u/s 77, shall be liable u/s 447
If there is
⮚ Omission or delay to intimate payment/satisfaction of charge
⮚ Omission or misstatement in filing particulars of registration/
modification/satisfaction of charge
Due to
⮚ Accidental/ Inadvertent mistake
⮚ Not to prejudice the position of creditors/shareholders
⮚ Sufficient cause
Then the company/other interested person may apply to CG for rectification of error or
extension of time for intimation of satisfaction. CG may allow if it deems fit. This shall not
affect the rights of the parties.
Section 96-122
After Meeting
During Meeting
Meetings Before meeting Sec 118- Minutes of
Sec 103- Quorum
Sec 96- AGM Sec 101- Notice GM
Sec 104- Chairman
Sec 97-99- Sec 102- Sec 119-122- Misc
Default in Explanatory Sec 105- Proxies topics
holding meeting Statement Sec 106-110 - Voting
Sec 100- EGM Methods
Sec 111-117-
Resolution related
concepts
Provided: Such notice is placed on the website AND advance opportunity is given to
members to update their email ids every FY.
These business are compulsorily dealt with in the AGM. Any business other than
They include: ordinary business is called
1. Considering FS 'Special Business'.
2. Declaration of dividend (NOTE: It may require OR/
3. Appointment and retirement of Directors SR depending on the
provisions of Co. Act 2013)
4. Appointment & fixing remuneration of Auditors
Where any special business is to be transacted at the company’s general meeting, then an
‘Explanatory Statement’ should be annexed to the notice calling such general meeting, which
must specify
⮚ nature of concern/interest of every director/manager/KMP and their relatives.
⮚ relevant & material information and facts related to such business
⮚ where any item of special business to be transacted at a meeting of the company
relates to or affects any other company, the extent of shareholding interest in that
other company of every promoter, director, manager, if any, and of every other key
managerial personnel of the first mentioned company shall, if the extent of such
shareholding is not less than 2% of the paid-up share capital of that company, also be
set out in the statement
⮚ Where any item of business refers to any document, which is to be considered at the
meeting, the time and place where such document can be inspected shall be specified
Contravention of sec 102: Every promoter, director, manager, or other key managerial
personnel or other officer in default:
⮚ Fine 50,000 or Whichever is Lower
⮚ 5 times of benefits accruing to them
Company Quorum
Private company Minimum 2 members
Public Company having
Upto 1000 member 5 members personally present
1001-5000 members 15 members personally present
More than 5000 members 30 members personally present
⮚ Election of Chairman:
o AoA may specify, otherwise
o members, personally present, shall elect the Chairman among themselves by
show of hands
⮚ If a poll is demanded on the election of the Chairman, it shall be taken forthwith
in accordance with the provisions of this Act and the Chairman elected on a show
of hands under sub-section (1) 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.
⮚ Powers and functions of chairman:
o Manages GM
o Must be impartial and fair
o Maintains decorum of the GM
o Has the power of Casting vote in board meeting and GM if so allowed in AoA.If
not mentioned in AoA, then ordinary resolution on which there is equality of
votes is deemed to be dropped.
{Meaning: in event of the equality of vote on a particular business being
transacted at the meeting, the Chairman shall have a right to cast a second
vote.}
o Can demand a poll under Section 109
⮚ Meaning: Any member of a company who is entitled to attend and vote at a meeting
of the company shall be entitled to appoint another person as a proxy to attend and
vote at the meeting on his behalf in case he is unable to attend.
⮚ Role of Proxy
o Cannot participate in discussion in GM
o Cannot vote other than vote by poll
o Is not counted for quorum
o can demand a poll
o can act as proxy for more than one member provided it is not more than
Section 106 Section 107 Section 108 Section 109 Section 110
Restriction on
Voting Show of hands Electronic Mode Poll Postal Ballot
▪ AoA may provide that no member shall exercise any voting right in respect of any share
registered in his name on which
o any amount due and payable from him on calls or
o other sums payable or
o company has exercised the right of lien.
Such member can’t sign a requisition for an extraordinary general meeting.
▪ Company cannot restrict right to vote other than as specified above. Therefore, express
provision is required in the Articles of the company to provide such restrictions.
▪ In Poll 🡪Member may use his votes as he likes
▪ Joint holders 🡪
o Must vote in consensus
o Otherwise, procedure stated in AoA shall apply
o In absence of any such procedure, order of seniority is determined on the basis of
the order in which their names appear in the register of members/ shareholders
⮚ Unless the voting is demanded by way of poll (u/s 109) or by electronic means (u/s
108), the voting should be by way of show of hands in the first instance.
⮚ Declaration by Chairman in the minutes books 🡪 conclusive evidence that the
resolution is passed.
⮚ Procedure/Steps:
i. Notice of GM:
▪ Must contain the usual details and sent as per section 101
▪ Must be placed on Co. website and 2 newspapers (vernacular and English)
▪ Additional disclosure:
o Details about the option to vote via e-mode like time schedule, id, password
generation method, procedure
o ‘the members who have cast their vote by remote c-voting prior to the meeting
may also attend the meeting but shall not be entitled to cast their vote again’
o Grievance redressal information of the Co. like email address/ phone number
o Details of web address of co. where copy of notice can be found
ii. Time limit for E-voting:
▪ Chairman along with the scrutinizer shall count all those members who are present
at the general meeting but have not cast their votes by availing the remote e-
voting facility. Such members shall be allowed to vote at GM
▪ The scrutinizer shall Count all the votes in the presence of at least 2 witnesses.
Witness shall not be employee of company.
▪ He must prepare report within 3 days.
▪ Results shall be posted on the Co. Website. And sent to relevant stock exchanges
▪ scrutiniser shall maintain a register either manually or electronically to record the
assent or dissent received with details of member
⮚ Meaning: A polling paper is circulated among the members present in the GM wherein
they cast their votes. The voting is based on the % of share capital having voting rights
held by the member
⮚ Who can demand a poll?
o Chairman or
o For Company having share capital
▪ Member/their proxies holding not less than 1/10th of the total voting
power or
▪ Member/their proxies holding shares on which an aggregate sum of not
less than Rs. 5L or such higher amount as may be prescribed has been
paid – up
o For Company not having share capital
▪ Member/their proxies holding not less than 1/10th of the total voting
power
⮚ Person demanding poll can withdraw the same at any time before it commences
⮚ Time of demanding Poll:
o Before declaration of result of voting by show of hands or
o On declaration of such result
⮚ Scrutinizer:
o Appointed by Chairman
o Can be 1 or more
o Should NOT BE EMPLOYEE OF Co.
o His function
▪ ensure proper conduct of the polling process;
▪ maintain proper records
▪ submit a report to the Chairman of the meeting 🡪 containing details of
votes cast in the favour and against the resolution;
▪ ensure compliance of section 109 and Rules
⮚ Procedure of Voting (Rule 21):
o Scrutinizers are provided with the Register of Members, specimen signatures of the
members, Attendance Register and Register of Proxies, other documents
o He shall arrange for Polling papers and distribute them to the members and proxies
present. Prescribed form for Polling paper is Form No. MGT-12.
⮚ Meaning: A post is sent to every member of the company along with the notice wherein
the shareholder has the option to cast its vote and send the same back to the company
within prescribed time. If the vote is casted through post, such member shall not be
allowed to vote in GM.
⮚ Section 2(65) of the Act defines: "Postal ballot" means voting by post or through any
electronic mode
⮚ Mandatory Postal Ballot instead of conducting business at GM:
(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;
o Appointed by BoD
o Can be 1 or more
o Suitably qualified
o Should NOT BE EMPLOYEE OF Co.
Any Body Corporates who are members/creditor of a company🡪 may appoint their
representative at any meeting by resolution of its directors or other governing body. Such
Representative shall have all rights and powers of member. Such representative shall be
appointed by resolution of the board of directors or of the governing body of such
corporation.
Section 111 - Circulation Of Member’s Resolutions
Members may request any resolution to be considered in an Annual general meeting. The
company shall be bound to give notice to members of details of such resolution and consider
the same at the GM.
Conditions:
Motion Resolution
Oral opinion or recommendation/proposals Actual
of votes in favour and against are cast
resolution to be passed. to adopt a motion.
No need of quorum Quorum is mandatory
No types Types : OR/SR
Eg: fixing a date of adjournment of GM Eg: Appointing Auditor/Director: OR
required
Including casting vote of chairman and Notice must specify that SR is required for the
proxies' votes particular business.
Note: For Section 114, votes may be cast by way of show of hands, poll. E mode, or postal
ballot. Votes of proxy (in case of poll) and members present in person shall both be
considered.
Section 115 - Resolutions requiring special notice
⮚ Meaning: In order to consider certain types of resolutions as mentioned under this section
or AoA🡪special notice may be required to be given by the company to all shareholders in
prescribed manner.
⮚ u/s 115 Special notice is required to pass following resolutions:
▪ To appoint as auditor a person other than a retiring auditor – Section 140;
▪ Providing expressly that a retiring auditor shall not be re-appointed – Section 140;
▪ To remove a director under section 169(2) or
▪ To appoint a person to fill the vacancy caused by the dismissal of a director under
section 169 at the same meeting.
▪ Other resolutions company may specify in its AoA
⮚ Application to consider such resolution shall be made to the company
▪ Signed by a minimum:
o members holding not less than 1% of the total voting power or
o holding shares on which such aggregate sum not exceeding ` 5,00,000, has been
paid-up
▪ When:
o At least 14 days prior to the GM
o Maximum 3 months prior to the GM
o Excluding date of GM and notice given
⮚ On receipt of Application 🡪
o the company shall give its members, notice of the resolution 🡪 at least 7 days
✔ Every Resolutions and agreements shall be filed with the RoC, together with the
explanatory statement, within 30 days of its passing🡪 Form MGT- 14
✔ Any resolution/agreement that causes alteration of AoA🡪 shall be annexed to every copy
of AoA
▪ Special resolution
▪ Unanimous resolutions
▪ Board Resolution for appointment/ reappointment of MD
▪ Resolution of class of shareholders
▪ Resolution u/s 180
▪ Winding up resolution
▪ Resolution u/s 179(3)* (see below)
▪ Other prescribed resolution/agreements
*Provided no person shall be entitled under section 399 to inspect or obtain copies of such
resolutions.
Provided further that nothing shall apply in respect of a resolution passed to grant loans,
or give guarantee or provide security in respect of loans under section 179(3)(f) in the
ordinary course of its business by, —
(a) a banking company;
(b) any class of NBFC registered under Chapter IIIB of the Reserve Bank of India Act, 1934,
as may be prescribed in consultation with the RBI;
(c) any class of HFC registered under the National Housing Bank Act, 1987, as may be
prescribed in consultation with the NHB; and
If for any reason, it is impracticable to call an EGM🡪 NCLT may call so 🡪 on application of any
director/member of the company/Suo Moto
● Company/Officer in default:
▪ Fine 🡪 up to 1L
▪ Continuous default 🡪 5K/day
⮚ Without prejudice to any other provisions of this Act, any document, record, register,
minutes, etc.,—
(a) required to be kept by a company; or
(b) allowed to be inspected or copies to be given to any person by a company under
this Act, may be kept or inspected or copies given, as the case may be, in
electronic form in such form and manner as may be prescribed.
⮚ Section refers to Rules w.r.t maintaining and inspecting document, record, register or
minute in electronic form
⮚ {Rule 27} Mandatory for following companies to maintain document in E-format
o Listed Co. or
o Co. having 1000 or more security holders (debenture-holders/
shareholders/etc.)
⮚ {Rule 28} Persons responsible for maintaining:
o MD
o CS
o Other director/officer authorised by BoD
⮚ {Rule 29} Company shall have the same responsibilities to make those records
available for inspection or to provide copies of the whole/ part of those records.
▪ Details of registration
▪ Particulars of the company’s registered office
▪ Principal business activities pursued by the company
▪ Particulars of Holding, Subsidiary and Associate Companies
▪ Particulars of the shares, debentures and other securities of the company
▪ Particulars of turnover and net worth of the company
▪ Details of shareholding pattern.
Registered office
Other place In India
Provided:
SR passed at GM +
1/10th or more of members
reside in that place in India
⮚ Inspection:
o Allowed to interested parties (debenture-holders, deposit holders,
shareholders etc.)
o During business hours
o On payment of fees
o BoD may fix a few hours of the day for inspection (NOT less than 2 Hrs/day)
o Photocopies can be taken
o Certain prescribed particulars of registers/ returns shall be not be available for
inspection/taking copies
o Following particulars of the register/index/return in respect of the members
of a company shall not be made available for any inspection under S. 94(2) or
for taking extracts or copies under S.94(3) :
▪ address or registered address (in case of a body corporate);
▪ e-mail ID
▪ Unique Identification Number
All the registers. returns and its copies shall be allowed as prime facie evidence in the court
of law.
Section 88 – Registers
Register maintained by the Depository is “deemed register” and in compliance with section
88.
❖ Foreign Registers
o Meaning: Separate Register maintained outside India to record the transactions of
foreign security holders.
o It’s is deemed part of the principal register.
o Company may maintain such register provided following conditions followed:
Opening foreign register
▪ AoA must authorise (else alter AoA)
▪ Open Foreign register and send a copy to registered office in home country
▪ Within 30 days of receipt of register in home country, RoC must be informed
in form No. MGT 3-
o address where foreign register is maintained
o change in address
o discontinuance details
Discontinuing foreign register
▪ Form MGT – 3 must be filed with Roc
⮚ Declaration to Company:
o Any individual (alone/with other person or trust 🡪 In/outside India)
o having beneficial interest in shares of company of not less than 25% or such
percentage as may be prescribed /significant influence or control over the
company
o must file declaration
▪ Form BEN-1 to company
▪ within 30 days of acquiring interest
▪ Content of declaration: nature of interest, amount, date of creation etc.
▪ CG may exempt certain class of person
Duty of Companies
⮚ Register of declarations of beneficial interest
o shall be maintained by Co.
o Contents : name, address, DoB,, details of ownership, other prescribed details
o Inspection: allowed to members on payment of prescribed fees
⮚ Return with RoC:
Such person shall send his details to the company within 30 days of date of notice
If such information is not received in allowed time/received but is not satisfactory then,
company may apply to tribunal within 15 days of above time.
Within 60 days of application, Tribunal shall give opportunity of being heard to parities
concerned & pass order restricting rights attached with shares
Person aggrieved by order can apply to tribunal within 1 year requesting to relax the restrictions.
Otherwise, after 1 year shares are transferred to IEPF (U/s 125){Investor Education and
Protection Fund)
⮚ Penalty:
Section 123-127
Dividend:
⮚ Section 2(35) of the Companies Act, 2013, simply states that “dividend” includes any
interim dividend.
⮚ A dividend is a payment made by a company to its shareholders, usually as a
distribution of profits
Types of Dividend:
Where, RD1, RD2, RD3 are rates at which dividend was declared by it in the 3 years
immediately preceding that year.
[Not apply 🡪 if a company has not declared any dividend in each of the 3 preceding
financial years.]
IX. Section 8 Company🡪 cannot pay/declare dividend to its members. Their profits are
intended to be applied only in promoting the objects of the company.
7 Days
90 Days
Put on
Website of Website approved by
Co. Govt for this purpose
Seven years
Section 126 - Right Of Dividend, Rights Shares And Bonus Shares To Be Held In
Abeyance Pending Registration Of Transfer Of Shares
Where any instrument of transfer of shares has been delivered to any company for
registration and the transfer of such shares has not been registered by the company then
Such transferor may authorise in writing to the In absense of such request, such Dividend shall be
company to transfer such Dividend declared to transfered to to the Unpaid Dividend Account u/s
transferee 124. ,
• Bonus shares & right shares w.r.t such unregistered transfer of shares 🡪 shall be
kept in abeyance (on hold till the transfer is registered).
● Dividend declared but not been paid within 30 days from declaration:
o Directors knowingly part of the default 🡪 imprisonment upto 2 years + fine
1000/day
o Company 🡪 18% p.a. interest till the delay continues shall be paid to the
members
● Exceptions to above (No penalty applicable): where the dividend could not be paid to
shareholder due to
a. operation of any law;
b. shareholder has given directions to the company regarding the payment of the
dividend and those directions cannot be complied with and the same has been
communicated to him;
c. dispute regarding the right to receive the dividend;
d. dividend has been lawfully adjusted by the company against any sum due to it
from the shareholder;
e. any other reason where the failure to pay the dividend was not due to any
default on the part of the company.
Section 128-138
● Company must keep its ‘Books of A/c’ and papers for every Financial Year
⮚ True & fair view
⮚ Double entry
⮚ Accrual basis
● Definition of ‘Books of Accounts’ u/s 2(13) can be summarised as under:
Books of Accounts
balance statement of
sheet cash flow profit and loss any explanatory
changes
statement account note annexed
in equity
● As per schedule III of the Companies Act 2013 [Not Applicable: Electricity
generating Co., Insurance Co., Banking Co. & company governed by other law]
● Should give true and fair view of the business of the company
(Securities &
(Central Income Tax Statutory Other prescribed
Exchange Board
Government) CG Authorities Regulatory Body bodies
of India) SEBI
Notice shall be served to the applicants, Central Government, the Income-tax authorities, the
Securities and Exchange Board or any other statutory regulatory body or authority concerned or
any other person concernedtheir representation shall be considered and order shall be passed.
Note: Time Limit in respect of re-opening of books of account: No order shall be made
under sub-section (1) in respect of re-opening of books of account relating to a period
earlier than eight financial years immediately preceding the current financial year.
Provided that where a direction has been issued by the Central Government under the
proviso to sub-section (5) of section 128 for keeping of books of account for a period longer
than eight years, the books of account may be ordered to be re- opened within such longer
period
⮚ Under this section the CG has established a separate and independent regulatory body
to assist in the framing and enforcement of legislation relating to accounting &
auditing called NFRA.
⮚ Role:
▪ Makes recommendations to CG regarding Accounting and Auditing standards
and procedures to be followed by companies
▪ Monitors their compliance
▪ Oversees the quality of service provided by associated professionals
▪ Other prescribed functions
⮚ Composition:
▪ 1 Chairperson
▪ Maximum 15 members
⮚ Divisions of NFRA:
▪ NFRA shall perform its functions through such divisions as may be prescribed
▪ Each division of the National Financial Reporting Authority shall be presided
over by the Chairperson or a full-time Member authorised by the Chairperson
▪ There shall be an executive body of the National Financial Reporting Authority
consisting of the Chairperson and full-time Members of such Authority for
efficient discharge of its functions
⮚ Qualification of members/chairperson:
▪ expertise in accountancy, auditing, finance or law
▪ make a declaration to the Central Government that there is no conflict of
interest or lack of independence in their appointment
⮚ As per NFRA rules, NFRA shall have power to monitor and enforce compliance with
accounting standards and auditing standards, oversee the quality of service under
sub-section (2) of section 132 or undertake investigation under sub-section (4) of
such section of the auditors of the following class of companies and bodies
corporate:
a) companies whose securities are listed on any stock exchange in India or outside
India;
b) unlisted public companies having paid-up capital of not less than rupees five
hundred crores or having annual turnover of not less than rupees one thousand
crores or having, in aggregate, outstanding loans, debentures and deposits of not
The Central Government may prescribe the standards of accounting or any addendum
thereto, as recommended by the Institute of Chartered Accountants of India, constituted
under section 3 of the Chartered Accountants Act, 1949, in consultation with and after
examination of the recommendations made by the National Financial Reporting Authority.
Provided that until the National Financial Reporting Authority is constituted under section
132 of the Companies Act, 2013 (18 of 2013), the Central Government may prescribe the
standards of accounting or any addendum thereto, as recommended by the Institute of
Chartered Accountants of India, constituted under section 3 of the Chartered Accountants
Act, 1949 (38 of 1949), in consultation with and after examination of the recommendations
made by National Advisory Committee on Accounting Standards Constituted under section
210A of the Companies Act, 1956".
I. Financial Statement
⮚ It must be attached with Audit Report, Board report and other relevant
documents.
⮚ FS must be approved by the BOD and signed by
o chairperson of the co. where he is authorised by the board or any 2
directors out of which one shall be the MD and
o CEO
o CFO
o CS
⮚ For OPC having only one director: such director must sign
II. Board Report
⮚ Prepared by the BOD
⮚ Attached with the Financial Statement
Rule 8(5) ADDITIONAL DISCLOSURES in Board Report (N/A – OPC & small company)
In addition to the information and details specified in sub-rule (4), the report of the Board
shall also contain -
(i) the financial summary or highlights;
(ii) the change in the nature of business, if any;
(iii) the details of directors or key managerial personnel who were appointed or
have resigned during the year;
(iiia) a statement regarding opinion of the Board with regard to integrity, expertise and
experience (including the proficiency) of the independent directors appointed during the
year”
Explanation- For the purposes of this clause, the expression “proficiency” means the
proficiency of the independent director as ascertained from the online proficiency self-
assessment test conducted by the institute notified under Section 150 (1).
(iv) the names of companies which have become or ceased to be its Subsidiaries,
joint ventures or associate companies during the year;
(vi) the details of deposits which are not in compliance with the requirements of
Chapter V of the Act;
(vii) the details of significant and material orders passed by the regulators or courts or
tribunals impacting the going concern status and company’s operations in future;
(x) a statement that the company has complied with provisions relating to the
constitution of Internal Complaints Committee under the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(xi) details of application made or any proceeding pending under the Insolvency and
Bankruptcy Code, 2016 during the year alongwith their status as at the end of the
financial year.
(xii) details of difference between amount of the valuation done at the time of one time
settlement and the valuation done while taking loan from the Banks or Financial
Institutions along with the reasons thereof.
Company having any amount in its Unspent Corporate Social Responsibility Account as
per section 135(6) shall constitute a CSR Committee and comply with the provisions
contained in Sec 135 (2) – Sec 135(6) [Proviso to Rule 3(1)]
⮚ CSR Committee:
o Consists of 3 or more directors (one director shall be independent director)
▪ Provided that where a company is not required to appoint an
independent director under sub-section (4) of section 149, it shall have
in its Corporate Social Responsibility Committee 2 or more directors.
o In case of foreign company: two persons (one person as per section 380 and
another person nominated by foreign company)
⮚ Board Report must disclose CSR committee composition
⮚ Duties of CSR Committee:
o Formulate and recommend CSR policy to Board
o Recommend amount to be spent along with activities to be undertaken
o Monitor implementation of the policy
⮚ Duties of Board:
o after taking into account recommendations made by CSR Committee, approve
CSR Policy -> disclose contents of such Policy in its report -> also place it on
company's website, if any, in such manner as may be prescribed
▪ Rule 8 – Board report shall include annual report on CSR containing
particulars specified in Annexure I or Annexure II
▪ Rule 9 – BOD shall mandatorily disclose composition of CSR Committee, CSR
Policy and Projects approved by it on company website, if any, for public
access
o ensure that activities as are included in CSR Policy of the company are
undertaken by the company.
🡺 Impact assessment reports shall be placed before Board and shall be annexed to
the annual report on CSR.
🡺 Impact assessment expenditure may be booked towards CSR, but it shall not
exceed 2% of total CSR expenditure for that F.Y. or ₹50 lakh, whichever is higher.
(i) Eradicating hunger, poverty and malnutrition, promoting health care including
preventive health care and sanitation including contribution to the Swach Bharat
Kosh set-up by the Central Government for the promotion of sanitation and making
available safe drinking water.
(ii) promoting education, including special education and employment enhancing
vocation skills especially among children, women, elderly and the differently
abled and livelihood enhancement projects.
(iii) promoting gender equality, empowering women, setting up homes and hostels
for women and orphans; setting up old age homes, day care centres and such other
facilities for senior citizens and measures for reducing inequalities faced by
socially and economically backward groups.
(iv) ensuring environmental sustainability, ecological balance, protection of flora
and fauna, animal welfare, agroforestry, conservation of natural resources and
maintaining quality of soil, air and water [including contribution to the Clean
Ganga Fund set-up by the Central Government for rejuvenation of river Ganga.
🡺 Keeping in view of spread of novel Corona Virus (COVID-19) in India, its declaration
as pandemic by World Health Organisation (WHO), and decision of Government of
🡺 Spending of CSR funds for activities related to Har Ghar Tiranga campaign, such as
mass scale production and supply of the National Flag, outreach and amplification
efforts and other related activities, are eligible CSR activities pertaining to
promotion of education relating to culture.
must be sent to
Provided also that every listed company having a subsidiary or subsidiaries shall
- place separate audited accounts in respect of each of subsidiary on its website, if
any
- provide a copy of separate audited or unaudited financial statements, as the case
may be, as prepared in respect of each of its subsidiary, to any member of the
company who asks for it
Provided also that a listed company which has a subsidiary incorporated outside India
(herein referred to as "foreign subsidiary")—
(a) where such foreign subsidiary is statutorily required to prepare consolidated
financial statement under any law of the country of its incorporation, the
requirement of this proviso shall be met if consolidated financial statement of such
foreign subsidiary is placed on the website of the listed company;
(b) where such foreign subsidiary is not required to get its financial statement audited
under any law of the country of its incorporation and which does not get such
financial statement audited, the holding Indian listed company may place such
unaudited financial statement on its website and where such financial statement
is in a language other than English, a translated copy of the financial statement in
English shall also be placed on the website.
⮚ Inspection: Documents must be kept open for inspection during business hours at the
registered office. A copy must also be published on the company website. Company
shall allow every member or trustee of the holder of any debentures issued by the
company to inspect.
⮚ Provided that every company having a subsidiary or subsidiaries shall provide a copy
of separate audited or unaudited financial statements, as the case may be, as
prepared in respect of each of its subsidiary to any member of the company who asks
for it.
⮚ Default :
o Company: 25K Rs.
o Officer in default: 5K Rs.
Copy of FS +CFS
+other documents
Company must file with RoC within 30
days from the last date on which AGM
should have been held, prescribed
documents, reasons of not holding
adopted AGM.
not adopted at
AGM/Meeting
adjourned
⮚ Time limit for OPC: Documents must be filed within 180 days from the closure of
Financial Year
⮚ Prescribed fees shall be payable on submission
⮚ FS must be attached with accounts of subsidiaries in/outside India
⮚ Note: In the case of a subsidiary which has been incorporated outside India which is
not required to get its financial statement audited under any law of the country of its
incorporation and which does not get such financial statement audited, holding Indian
company may file such unaudited financial statement along with a declaration to this
(1) The following class of companies shall file their financial statements and other
documents under section 137 of the Act with the Registrar in e-form AOC-4 XBRL as
per Annexure-I:-
(i) companies listed with stock exchanges in India and their Indian subsidiaries;
(ii) companies having paid up capital of five crore rupees or above;
(iii) companies having turnover of one hundred crore rupees or above;
Date of
Government-Sec registration
C&AG BOD Members in EGM
139(7)
Non- Date of
BOD Members in EGM
Government- Sec registration
139(6)
Appointment of 0 Day 30 Days 90 Days
Auditor
Date of FY C&AG
Government Sec- Commencement
139(5)
Sec139(4) - Rules
Sec 139(2) - Appointment of auditor/frim of auditors Sec 139(3) -
by Central
for a term of 5 years and 10 years respectively Members resolve
Government
C&AG BOD
BOD
Sec 139(8)-Filling
of casual vacancy
Resignation
Approved in General Meeting convened in 3
0 Days months 30 Days
Non-
Government BOD
Other reasons
0 Days 30 Days
Not No Special
Not willing to
disqualified Resolution
continue
under law passed
Expressely
Appointing
rejecting
someone else
retiring auditor
30 days 60 days
Date of Resignation
Special Notice
requirement
Copy of Notice to
To pass Special
be sent to
Resolution at
concerned Copy of Notice
AGM providing
auditor and
representations
to be sent to
every person to
No re- Appointment of whom notice of
For making his AGM was served
appointment of any other person
representations
Retiring Auditor as auditor
If an auditor occurs any disqualification mentioned in Sec 141(3) after his appointment then he shall vacate the office and
such vacation shall be treated as “Casual vacancy”
(h) A person who has been convicted of an offence involving fraud and a period of
10 years has not elapsed.
(i) Any person who directly/indirectly renders any service u/s 144 to same company /its Holding/subsidiary.
Authority to fix
remuneration
Rights of Auditor
Right to
Right to access
information
Duties of Auditor
Inquire into the Propriety matters (Sec 143(1))
• Loans and advances are properly secured and terms are prejudicial
• Book entries are prejudicial
• Shares, debentures and other securities are sold at a price less than acquisition cost in case of non banking and
non investment company
• Loans and advances made are shown as deposits.
• Personal expenses charged to revenue account
• Cash has actually been received on shares allotted for cash, if not received, correct position shown in books and
balance sheet
Rule 11
i. Disclosure of impact of pending litigations on financial position.
ii. Provisions for Material Foreseeable losses on long term contracts made
iii. Any delay in transferring amounts to IEPF
iv. Whether management has represented that, to best of its knowledge and belief, other than as disclosed
in notes to accounts,
a. no funds have been advanced/loaned/invested by company to or in any other person(s) or entity(ies),
0 Days 60 Days
Test Audit (Sec 143(7))
C&AG may, if considers necessary, by an order, cause text audit of accounts of Government Companies
Branch audit
Accountant or any
Any other person
Company's Auditor Company's Auditor other person qualified
qualified to be Auditor
to be Auditor
Amount ≤ Rs. 1 Amount ≥ Rs. 1 Penalty for non-compliance with Sec 143 (12)
Crore Crore
Auditor, cost accountant, or CS in practice shall
be liable to penalty of ₹5,00,000 in case of listed
company and ₹1,00,000 in case of another
company.
Reported to BOD/ Report to Central
Audit Committee Government
Fraud reporting
BOD/AC
Auditor
Wilful default
Imprisonment
+ Minimum fine Maximum-Lower
which may
of the two
extend to 1 year
8 times the
Rs. 50,000 Rs. 25,00,000
remuneration
● Auditor convicted u/s 147(2) shall be liable to refund all remuneration and damages back to company.
Over the Audit Firm u/s 147(5)
🡺 In case of audit of company being conducted by an audit firm,
🡺 it is proved that partner or partners of the audit firm has or have acted in a fraudulent manner or abetted or
colluded in any fraud by, or in relation to or by, the company or its Directors or officers, the liability, whether
civil or criminal as provided in this Act or in any other law for the time being in force, for such act shall be of
the partner or partners concerned of the audit firm and of the firm jointly and severally
o In case of criminal liability of an audit firm, in respect of liability other than fine, only the partners found
guilty of fraud shall be liable.
Within 30 days from receipt of a copy of the cost audit report, Co. shall furnish the same to CG along with full
information and explanation on every reservation or qualification contained therein. [e-form CRA-4]
CG may call for any further information or explanation is necessary. Company shall furnish the same within such
time as may be specified by that Government.
Section 124-147
Contract of Indemnity
● Definition u/s 124: “a contract by which one party promises to save the other from loss
caused to him by the conduct of the promisor himself, or by the conduct of any other
person.”
Basic Conditions:
● “existence of loss” is essential to the promise
● Such loss is caused by:
• conduct of the promisor himself or
• conduct of any other person.
Loss occasioned by the conduct accident or an act of God is not covered.
● It could be either
• Express Contract: a person expressly promises to compensate the other from
loss🡪 written/oral
• Implied Contract: it is to be inferred from the conduct of the parties or from
the circumstances of the case
• Must fulfil all the essentials of a valid contract which includes:
• Offer and acceptance
• Intention to create legal obligation
• Consideration
• Competency to contract
• Free consent
• Lawful object
• The agreement must not be expressly declared to be void- eg: an agreement
in restraint of trade/ marriage etc.
• The terms of the agreement must not be vague or uncertain
• The agreement must be capable of performance- An agreement to do an
impossible act is void.
• Legal formalities complied
Example: A asks B to beat C promising to indemnify him against the consequences. The
promise of A cannot be enforced. Suppose, B beats C and is fined ` 1000, B cannot claim
this amount from A because the object of the agreement is unlawful.
● Insurance Contracts
● When does the liability of an indemnifier commence? 🡪 (as per court rulings. Act is
silent)🡪
as soon as the liability of the indemnity-holder becomes:
• Absolute: 100% surety of the liability
and
• Certain: Amount is fixed/can be calculated definitely.
Example: A promises to compensate X for any loss that he may suffer by filling a suit against
Y. The court orders X to pay Y damages of Rs 10000 . As the loss has become certain, X may
claim the amount of loss from A and pass it to Y
Parties:
Example: Mr. X contracts with the Government to return to India after completing his studies
Here Indemnifier🡪
And Indemnified 🡪
Example: X may agree to indemnify Y for any loss or damage that may occur if a tree on
Y’s neighbouring property blows over. If the tree then blows over and damages Y’s fence, X
will be liable for the cost of fixing the fence.
Example: X, a shareholder of a company lost his share certificate. He applied for the
duplicate. The company agreed to issue the same on the term that X will compensate the
company against the loss where any holder produces the original certificate. Here, there is
contract of indemnity between X and the company.
A Contract of Guarantee:
- to perform the promise, or
- to discharge the liability
of a third person in case of his default is called a contract of guarantee. Guarantee is
a promise to pay a debt owed by a third person in case the latter does not pay. It is
a tripartite agreement between principal debtor, creditor and surety, in effect three
contracts
(i) A principal contract between the principal debtor and the creditor
(ii) A secondary contract between the creditor ad the surety.
(iii) A implied contract between the surety and the principal debtor whereby principal
debtor is under an obligation to indemnify the surety; if the surety is made to pay or
perform.
1) Surety (Guarantor): The person who gives the guarantee is called the surety.
2) Creditor: The person to whom the guarantee is given is called creditor.
3) Principal Debtor: The person in respect of who’s default the guarantee is given is called
● At the time of making of contract of guarantee, the surety is at liberty to state the limit
of his liability
He is liable only to the extent of his stated limit on the default of the principal debtor.
● Liability of surety is of secondary nature as he is liable only on default of principal debtor
● Where a debtor cannot be held liable on account of any defect in the document, the
liability of the surety also ceases.
● In the absence of any such contract, the liability of the surety is co-extensive with that
of the principal debtor. It means that the surety is liable for what the principal debtor
is liable. However, the liability of the surety may be made less than that of the principal
debtor
● Surety’s liability continues even if the principal debtor has not been sued or is omitted
from being sued. In other words, a creditor may choose to proceed against a surety
first, unless there is an agreement to the contrary.
● Whatever the case may be, the liability of the surety is secondary and conditional that
is it arises on the default of the principal debtor.
Example : A guarantees to B the payment of a bill of exchange by C, the acceptor. The
Kinds of Guarantee:
1) Specific Guarantee: A guarantee given for a single debt/ particular transaction. The
surety’s liability comes to an end when the guaranteed debt is duly discharged or the
promise is duly performed.
2) Continuing Guarantee (Section 129): A guarantee which extends to a series of
transaction. Here, A surety’s liability continues until the revocation of the guarantee.
Indemnity Guarantee
1) Number of Parties two parties i.e. indemnifier Three
and parties i.e. surety, creditor
indemnified. and principal debtor.
2) Number of Contracts In indemnity there is only In oneguarantee, there are three contracts
contract between indemnifier i.e.
and indemnified. - between surety and creditor
- between surety and principal debtor
- an implied contract of indemnity
between the
principal debtor and surety.
3) Type of contract expressed or Implied. Always an express contract.
4) Nature of Undertaking A contract of indemnity is ofA contract of guarantee is a
contingent nature collateral contract
5) Nature of Liability The liability of indemnifier Here the primary liability is
is Primary, Absolute, Total that of principal debtor. The
liability of surety is
secondary and conditional.
6) Commencement of LiabilityThe liability of indemnifier The liability of surety commences when
commences when the the principal debtor makes default
indemnified suffer loss
7) Objective To save the indemnified from To provide security to the creditor in
a loss which may occur respect of existing debs and liabilities
to him in the future
8) Right to sue third party Indemnifier cannot sue the third
On the default of principal debtor, the
person in his own name butsurety
he (after discharging his liability) may
may initiate the sue him in his own name because he gets
proceedings on behalf allofthe right of a creditor after discharging
Where two persons contract with a third person to undertake a certain liability, and also
contract with each other that one of them shall be liable only on the default of the other
(Guarantee), the creditor cannot sue the guarantor, even if he is aware of such second
contract because he is not party to such contract. The two debtors shall hold the same
liability as per primary contract.
Example: A and B make a joint and several promissory note to C. A makes it, in fact, as
surety for B, and C knows this at the time when the note is made. The fact that A, to the
knowledge of C, made the note as surety for B, is no answer to a suit by C against A upon
the note.
c) By novation [Section 62]: if fresh contract is entered into either between the same
parties or between the other parties, the consideration being the mutual discharge of the
old contract.
Against Creditor:
1) Right of Subrogation [Section 140]: The terms subrogation may be defined as the
substitution of one person with another with same right and liabilities.
After discharging his liability on the default of principal debtor, the surety is vested with
all the rights which the creditor has against the principal debtor, for e.g.
a) Right to recover money paid from debtor
b) Right to securities (if any) held by creditor.
c) Right to initiate proceedings against the principal debtor in his own name.
2) Right to security: On repayment, surety steps into the shoes of the creditor. He has all
the rights of the creditor including the right to sell the security and recover the debt
from debtor.
3) Right to Indemnity [Section 145]: The surety is entitled to recover from the principal
debtor whatever sum he has rightfully paid under the guarantee, but not sums which he
paid wrongfully.
Against Co-Sureties:
Co-sureties (meaning)🡪 When the same debt or duty is guaranteed by two or more persons,
such persons are called co-sureties
1) Co-sureties liable to contribute equally (Section 146): when two or more persons are
co-sureties for
● the same debt, or duty,
● either jointly, or severally and
● whether under the same or different contracts and
● whether with or without the knowledge of each other,
● are liable to pay each an equal share of the whole/part debt.
● Any excess paid by one of them can be recovered from other co sureties.
● Exceptions 🡪 the co-sureties have a contract to share debt in different ratios
Example 1: A, B and C are sureties to D for the sum of 3,00,000 rupees lent to E. E
makes default in payment. A, B and C are liable, as between themselves, to pay
1,00,000 rupees each.
Section 148-181
Introduction
What is Bailment?
As per Section 148 of the Act, bailment is the delivery of goods by one person to another
for some purpose, upon a contract, that the goods shall, when the purpose is accomplished,
be returned or otherwise disposed of according to the directions of the person delivering
them.
Parties
● The person delivering the goods is called the “bailor”.
● The person to whom they are delivered is called the “bailee”.
Example : Where ‘X’ delivers his car for repair to ‘Y’, ‘X’ is the bailor and ‘Y’ is the bailee.
Duties of Bailor
1. Bailor’s duty to disclose faults in goods bailed [Section 150) The bailor is bound
to disclose to the bailee faults in the goods bailed, of which the bailor is aware, and which
materially interfere with the use of them, or expose the bailee to extraordinary risks.
If he does not make such disclosure, he is responsible for damage arising to the bailee
directly from such faults.
If the goods are bailed for hire, the bailor is responsible for such damage, whether he was
or was not aware of the existence of such faults in the goods bailed.
Example : A hires a carriage of B. The carriage is unsafe, though B is not aware of it, and
Rights of Bailor :
1. Liability of bailee making unauthorised use of goods bailed [Section 154]🡪 bailee is
liable to make compensation to the bailor for any damage arising to the goods from or
during such use of them.
Example : A lends a horse to B for his own riding only. B allows C, a member of his family,
to ride the horse. C rides with care, but the horse accidentally falls and is injured. B is
liable to make compensation to A for the injury done to the horse.
2. Effect of mixture, with bailor’s consent, of his goods with bailee’s [Section 155] : If
the bailee, with the consent of the bailor, mixes the goods of the bailor with his own
goods, the bailor and the bailee shall have an interest, in proportion to their respective
shares, in the mixture thus produced.
3. Effect of mixture, without bailor’s consent, when the goods can be separated [Section
156]
a. If the goods can be separated or divided🡪 the property in the goods remains in
the parties respectively and
b. the bailee is bound to bear the expenses of separation or division, and any
damage arising from the mixture.
c. Eg: mixing balls, clothes, furniture of bailor with bailee’s.
4. Effect of mixture, without bailor’s consent, when the goods cannot be separated
[Section 157] 🡪 the bailor is entitled to be compensated by the bailee for the loss of the
goods.
Eg: mixing flour, oil of bailor with bailee’s.
Termination of bailment
● Act done inconsistent with the condition of bailment
● Period of bailment expires
● Demand for return of goods
● Death of bailee
Duties of Bailee
1. Care to be taken by bailee [Section 151] : In all cases of bailment, the bailee is bound
to take as much care of the goods bailed to him as a man of ordinary prudence would,
under similar circumstances, take of his own goods of the same bulk, quality and value as
the goods bailed.
Example : If X bails his ornaments to ‘Y’ and ‘Y’ keeps these ornaments in his own locker
at his house along with his own ornaments and if all the ornaments are lost/ stolen in a
riot ‘Y’ will not be responsible for the loss to ‘X’. If on the other hand ‘X’ specifically
instructs ‘Y’ to keep them in a bank, but ‘Y’ keeps them at his residence, then ‘Y’ would
be responsible for the loss [caused on account of riot].
2. Bailee when not liable for loss, etc., of thing bailed [Section 152] : The bailee, in the
absence of any special contract, is not responsible for the loss, destruction or
deterioration of the thing bailed, if he has taken the amount of care of it described in
section 151.
Rights of bailee :
(i) to claim compensation for any loss arising from non-dislosure of known defects in the
goods.
(ii) to claim indemnification for any loss or damage as a result of defective title.
(iii) to deliver back the goods to joint bailors according to the agreement or directions.
(iv) If the bailor has no title to the goods, and the bailee, in good faith, delivers them back
to, or according to the directions of, the bailor, the bailee is not responsible to the
owner in respect of such delivery. (Section 166)
(v) to exercise his ‘right of lien’. This right of lien is a right to retain the goods and is
exercisable where charges due in respect of goods retained have not been paid. The
right of lien is a particular lien for the reason that the bailee can retain only these goods
for which the bailee has to receive his fees/remuneration.
(vi) Suit by bailor & bailee against wrong doers [Section 180] : If a third person wrongfully
deprives the bailee of the use or possession of the goods bailed, or does them any injury,
the bailee is entitled to use such remedies (file suit)as the owner might have used in
the like case if no bailment had been made; and either the bailor or the bailee may
bring a suit against a third person for such deprivation or injury.
Whatever is obtained by way of relief or compensation in any such suit shall, as between
the bailor and the bailee, be dealt with according to their respective interests (section
181).
When can the finder sell the goods found [Section 169] :
● Owner cannot with reasonable diligence be found, or
● if he refuses, upon demand, to pay the lawful charges of the finder
And
● when the thing is in danger of perishing or of losing the greater part of its value, or
● lawful charges of the finder in respect of the thing found amount to two-thirds of its
value.
Pledge
Meaning: Pledge is a variety or specie of bailment. It is bailment of goods as security for
payment of debt or performance of a promise.
In pledge, there is no change in ownership of the property. Under exceptional circumstances,
the pledgee has a right to sell the property pledged.
Essentials of contract of pledge :
● There must be bailment for security for payment of debt/ performance of a promise
● Goods must be the subject matter of the contract of pledge.
● The goods pledged must be in existence
● There must be a delivery of goods from pawnor to pawnee
Parties:
1. he person who pledges[or bails] is known as pledgor or also as pawnor.
2. the bailee is known as pledgee or also as pawnee.
Pawnee’s rights :
(a) Right of retainer [Section 173] : The pawnee may retain the goods pledged, not only
for payment of the debt or the performance of the promise, but for the interest, of the
debt, and all necessary expenses incurred by him in respect of the possession or for the
preservation of the goods pledged.
(b) Right to retention of subsequent debts [Section 174] : Pawnee has a right to retain
the goods pledged towards subsequent advances as well, however subject to such right
Rights of a pawnor
(a) Right to redeem [Section 177] : If a time is stipulated for the payment of the debt, or
performance of the promise, for which the pledge is made, and the pawnor makes
default in payment of the debt or performance of the promise at the stipulated time, he
may redeem the goods pledged at any subsequent time before the actual sale of them;
but he must, in that case, pay, in addition, any expenses which have arisen from his
default.
(b) Pledge where pawnor has only a limited interest [Section 179] : Where a person
pledges goods in which he has only a limited interest, the pledge is valid to the extent
of that interest.
Purpose A pledge is made for a specific A bailment can be for any purpose.
purpose as security for payment of
debt or performance of a promise.
Use of Goods A pawnee does not have the right The bailee may use the goods bailed as per the
to use the goods.
terms of the contract.
Lien Lien can be exercised even for A bailee can exercise lien on the goods bailed
non- payment of interest. only for his labour and
skill employed
Sale of Goods The pawnee can sell the goods The bailee has no right of sale.
after due notice to the pawnor.
Nature of Interest
Thein pledgee gets a special The bailee has no right of possession of the
Property property in the goods. The general goods bailed.
property remains with the
pawnor.
Introduction
An agency relationship is established when one party (agent) is authorized by another party
(principal) to act on his/ her behalf.
An agent has the potential to form contracts on behalf of the principal and in doing so, will
bind the principal.
It is a relation of trust and confidence.
What is Agency?
The Indian Contract Act,1872 does not define the word ‘Agency’.
But it does define the term ‘agent’ as “a person employed to do any act for another or to
represent another in dealings with third persons”.
The person for whom the act is done or who is so represented is called “Principal”.
[Section 182].
Test of Agency
(i) Whether the person has the capacity to bind the principal and make him answerable
to the third party 🡪 bind him in legal relationship
(ii) Whether he can establish Privity of Contract between the principal and third parties🡪
i.e, there is right to sue between principal and 3rd party
Relevant Maxim 🡪The Rule of Agency is based on the maxim “Qui facit per alium, facit per
se” i.e., he who acts through an agent is himself acting.
Who may employ an agent [Section 183]: Who may be an agent [Section 184]:
✔ age of majority + ✔ age of majority +
✔ sound mind ✔ sound mind
Consideration not necessary [Section 185]:
✔ no consideration is necessary to create an agency
✔ acceptance of the office of an agent is sufficient consideration
Example:
P appoints Q, a minor, to sell his car for not less than ` 2,50,000. Q sells it for` 2,00,000. P
will be held bound by the transaction and further shall have no right against Q for claiming
the compensation for having not obeyed the instructions, since Q is a minor and a contract
with a minor is ‘void-ab-initio’.
Creation of Agency
The authority of an agent means his capacity to bind the principal to third parties.
The agent can bind the principal only if he acts within the scope of his authority.
-lawful thing necessary for the all such acts for the purpose of
purpose of carrying out duties protecting the principal from loss as
will be done by a person of ordinary
-lawful thing justified by various prudence, even if the authority was
customs of trades not given by the principal.
Eg: Debt recovery agent can use all
legal methods to recover debt.
Conditions for valid agency during emergency:
-Agent unable to communicate with principal
-actual and definite commercial necessity to act
promptly
-Agent acts bonafide for benefit of principal
-Agent adopted the most reasonable and
practicable course under the circumstances,
-Agent must have been in possession of the
goods belonging to his principal and which are
the subject of contract
Sub Agents
Meaning 🡪 Agent of an agent, ie, person employed by, and acting under the control of, the
original agent
When agent cannot delegate [Section 190]? 🡪 For those acts which he has expressly or
impliedly undertaken to perform personally. As a general rule🡪 agent cannot delegate his
duties to other agents.--> “delegatus non potest delegare”.
Substitute Agent
● He is selected/appointed by the agent for a particular task. His name and details are
confirmed and consented by the principal.
● He is not sub-agent.
● [Reason: such substitute agent may have better qualification/accessibility to perform
part of the business]
Relation between principal and person duly appointed by agent to act in business
of agency
[Section 194]: Where an agent, holding an express or implied authority to name another
person to act for the principal in the business of the agency, has named another person
accordingly,🡪 such person is substitute agent for the business entrusted. Principal is bound
by his actions.
Example : A directs B, his solicitor, to sell his estate by auction, and to employ an
auctioneer for the purpose. B names C, an auctioneer, to conduct the sale. C is not a sub-
agent, but is A’s agent for the conduct of the sale.
Agent’s duty in naming such person [Section 195]: In selecting such agent for his principal,
an agent is bound to exercise the same amount of discretion as a man of ordinary prudence.
Principal shall not be responsible in case of negligence of the agent.
Example 1: A instructs B, a merchant, to buy a ship for him. B employs a ship surveyor of
good reputation to choose a ship for A. The surveyor makes the choice negligently and the
ship turns out to be unseaworthy and is lost. B is not, but the surveyor is, responsible to A.
Rights of Agent
(i) Right of retain out of sums received on principal’s account [Section 217]: Agent
has right to retain out of any sums received on account of the principal in business,
following sums:
a. all moneys due to himself
b. expenses properly incurred by him in conducting such business
c. remuneration
(ii) Right to remuneration [Section 219]: Such Remuneration may be as per contract or
(ix) Consequence of inducing agent or principal to act on belief that principal or agent
will be held exclusively liable [Section 234]: When a person who has made a contract
with an agent induces the agent to act upon the belief that the principal only will be
held liable, or induces the principal to act upon the belief that the agent only will be
held liable, he cannot afterwards hold liable the agent or principal respectively.
(x) Liability of pretended agent [Section 235]: A pretended agent is a person who
represents himself to be an agent of another, when infact he has no authority from
him, whatsoever.
(xi) Person falsely contracting agent not entitled to performance [Section 236]: A
person with whom a contract has been entered into in the character of agent, is not
entitled to require the performance of it if he was in reality acting, not as agent, but
on his own account. In simple words, where the person acts as an agent although he
is actually the principal, he shall be denied from enforcing the performance later in
the capacity of the principal
(xii) Liability of principal inducing belief that agent’s unauthorized acts were authorized
[Section 237]: When an agent has, without authority, done acts or incurred obligations
to third persons on behalf of his principal, the principal is bound by such acts or
obligations, if he has by his words or conduct induced such third persons to believe that
such acts and obligations were within the scope of the agent’s authority.
Example 1: A consigns goods to B for sale, and gives him instructions not to sell under
a fixed price. C, being ignorant of B’s instructions, enters into a contract with B to buy
the goods at a price lower than the reserved price. A is bound by the contract.
Revocation of authority
When termination of agent’s authority takes effect as to agent, and as to third persons
[Section 208]: The termination of the authority of an agent does not, so far as regards the
agent, take effect before it becomes known to him, or, so far as regards third persons, before
it becomes known to them.
Example 1: A directs B to sell goods for him, and agrees to give B five per cent commission
on the price fetched by the goods. A afterwards, by letter, revokes B’s authority. B, after
the letter is sent, but before he receives it sells the goods for` 1,00,000. The sale is binding
on A, and B is entitled to ` 5,000 as his commission.
Introduction
⮚ The Act was introduced on 1st March,1881.
⮚ The Law in India relating to negotiable instruments is contained in the Negotiable
Instruments Act, 1881.
⮚ Applicability :- whole of India and to all persons resident in India, whether foreigners
or Indians.
⮚ The Act was amended several times. Recent two amendments made in the
N.I. Act were the Negotiable Instruments (Amendment and Miscellaneous Provisions)
Act, 2002 and the Negotiable Instruments (Amendment) Act, 2015 and shall be
deemed to have come into force on the 15th day of June, 2015
Meaning And Characteristics Of Negotiable Instrument
Meaning: A Negotiable Instrument is a transferrable written piece of paper creating a right
of a person to receive money and a corresponding liability of a person to pay money.
Characteristics:
1. It should be in writing
2. Freely transferable.
3. It should create a right of a person to receive money and a corresponding liability of
a person to pay money.
4. Holder’s title is free from defects. A holder in due course acquires a good title
irrespective of any defect in a previous holder’s title. Conditions:
(i) for consideration
(ii) without notice as to the defect in the title of the transferor; i.e in good faith and
(iii) before maturity
5. A negotiable instrument can be transferred infinitum, i.e., can be transferred any
number of times, till its payment.
Types of N.E.: section 13 of the Act mentions only three kinds of negotiable instruments
namely,
(i) Promissory Notes
(ii) Bills of Exchange
(iii) Cheque.
Promissory Note
Essential requirements
1. Written.
of a valid promissory
2. Promise to pay.
note. However, notice that the use of the word promise is not essential to
constitute an instrument as promissory note.
3. Definite and unconditional promise. The promise to pay must not be
conditional. Therefore, instruments payable on performance or non
performance of a particular act or on the happening or non- happening
of an event, are not promissory notes.
However, the promise to pay may be subject to a condition, which
according to the ordinary experience of mankind, is bound to happen.
4. Certain sum of money.
5. The maker and payee must be certain person. The maker and payee
of the instrument must be certain, definite and different persons. A
promissory note cannot be made payable to the bearer (Sec. 31 of RBI
Act). Only the Reserve Bank or the Central Government can make or
issue a promissory note 'payable to bearer'.
6. Signature. The promissory note must be signed by the maker,
otherwise it is incomplete and ineffective.
7. Promise in money only.
8. Stamping. A promissory note must be properly stamped in accordance
with the provisions of the Indian Stamp Act and such stamp must be
duly cancelled by maker's signatures or initials or otherwise.
Cheque
Note 1:
Truncated Cheque Cheque in electronic
It means the cheque whose electronic image form
has been created during the course of clearing The cheque is drawn and signed
cycle, to substitute electronically by the use of digital
the further physical movement. signature.
Note 2:
● The expression “Banker” includes any person acting as a banker and any post office
saving bank [Section 3]
● “clearing house” means the clearing house managed/recognized by the Reserve Bank
of India
● expressions ”asymmetric crypto system”, “computer resource”, “digital signature”,
“electronic form” and “electronic signature” shall have the same meanings
respectively assigned to them in the Information Technology Act, 2000
Meaning: The acceptance is the signature of the drawee of a bill who has signed his assent
upon the bill and delivered it.
Thus, an acceptor is the drawee who has signed his assent upon the bill and delivered it to
the holder
Essentials of 1. In writing,
valid 2. Signed by the drawee or his agent,
Acceptance: 3. On bill of exchange,
4. Completed by delivery to the holder
▪ Writing the word 'Accepted' is immaterial.
▪ An oral acceptance or writing of the word 'Accepted' without the
drawee's signature is not an acceptance.
CLASSIFICATION OF INSTRUMENTS
NEGOTIATION OF INSTRUMENT
Meaning: When the maker or holder of a negotiable instrument signs the same otherwise
than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip
of paper annexed, he is said to indorse the same and as called the indorser.
The person to whom the instrument is indorsed is called the indorsee.
Example : X, who is the holder of a negotiable instrument writes on the back thereof
: “pay to Y or order” and signs the instrument. In such a case, X is deemed to have endorsed
the instrument to Y. If X delivers the instrument to Y, X ceases to be the holder and Y
becomes the holder.
1. Indorsement in Blank: Where the indorser just puts his signature without specifying
the indorsee, the indorsement is said to be in blank (Section 16). The effect of such an
indorsement is to render the instrument payable to bearer even though originally
payable to order (Section 54).
2. Indorsement in Full: Where along with indorser's signature, the name of the
indorsee is specified, the indorsement is called 'indorsement in full' (Section 16). Thus,
where the instrument states, 'Pay X or order' and is signed by A, the payee, it constitutes
'indorsement in full'.
Indorser who excludes his own liability or makes it conditional [Section 52]
Instrument acquired after dishonour or when overdue [Section 59] The negotiable
instrument, can be transferred even after dishonour or maturity but the person
obtaining it can never become holder in due course.
However if it is within understanding between parties, the endorsee may accept. He
may demand interest for the overdue period.
PRESENTMENT
⮚ Meaning: Presenting the bill to the drawee for payment of money on the due date.
Presentment
⮚ Modes of discharge:
One or more parties to a negotiable instrument may be discharged from liability in
either of the following ways :
1. Sec. 82 - By cancellation, Release or Payment :
By cancellation: Cancellation of acceptor’s name will discharge the instrument and
cancellation of any other party will discharge the party.
By release (waivor): Release of acceptor will discharge the instrument and release of
any other party will discharge the party.
By payment: When the amount due on the instrument is paid by the party primarily
liable on the instrument, the instrument is discharged.
2. Sec. 83 By allowing drawee more than 48 hours: If the holder of a bill of exchange
allows the drawee more than 48 hours, exclusive of public holiday(s) to consider
whether he will accept the same, all previous parties not consenting to such allowance
are discharged from liability to such holder.
3. Sec. 84 By delay in presenting cheques: If a cheque is not presented within a
reasonable time of its issue, and the bank fails and drawer suffers actual damages
through such delay, he is discharged from the liability to the holder to the extent of
such damage.
4. Sec. 85. Forgery of Indorser’s signature in case of Cheque : The Bank is discharged
by payment in due course even if the signature of indorser is forged.
Example : A cheque is drawn payable to “B or order”. It is stolen and the thief forges
B’s endorsement and endorses it to C. The banker pays the cheque in due course. Can
B recover the money from the banker ?
Answer : According to Section 85, the drawee banker is discharged when he pays a
cheque payable to order when it is purported to be endorsed by or on behalf of the
payee. Even though the endorsement of Mr. B is forged, the banker is protected and he
is discharged. The true owner, B, cannot recover the money from the drawee bank.
⮚ Sections 138 to 142 provides for criminal penalties in the event of dishonour of cheques
for insufficiency of funds.
⮚ Dishonoured due to insufficiency of funds (Sec. 138): The drawer, under Sec. 138,
may be punished with
● imprisonment upto 2 years or
● fine up to twice the amount of the cheque or
● both.
Following conditions must be satisfied for levy of penalty:
1. The cheque should have been dishonoured due to insufficiency of funds in the account
maintained by him with a banker for payment of any amount of money to another
person from out of that account.
As per the Case laws, following are deemed dishonoured due to insufficiency of funds:
(i) stop-payment unless stop-payment can be justified.
(ii) dishonour due to closure of account
If the person committing an offence under section 138 is a company,every person who,
at the time the offence was committed—
✔ was in charge of, and
✔ as responsible to the company for the conduct of the business of the company,
as well as the company, shall be deemed to be guilty of the offence and shall be liable
to be proceeded against and punished accordingly.
Exception:
● if he proves that the offence was committed without his knowledge, or that he had
exercised all due diligence to prevent
● director nominated by CG or SG
(1) Court shall take cognizance of any offence punishable under section 138 only if it is in
writing.
[cognizance of any offence--> means consider any case on an offence]
Time limit for filing the complaint is 1 month.
No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first
class shall try any offence punishable under section 138.
(2) Place of Jurisdiction of court for the trail of offence : The offence under section 138,
which deals with the dishonour of cheque, shall be inquired into and tried only by a court
within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an account, the branch of the bank
where the payee or holder in due course, as the case may be, maintains the account, is
situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise
through an account, the branch of the drawee bank where the drawer maintains the
account, is situated.
`
Lucknow April 10,
10,000 2017
Three months after date, I promise to pay Shri Ramesh (Payee) or to his order the sum of Rupees Ten
Thousand, for value received.
Stamp
Sd/- Ram
To, Shri
Ramesh,
B-20, Green Park, Mumbai.
(Maker)
r. A (Drawer)
Four months after date, pay to Mr. B (Payee) a sum of Rupees Ten Thousand, for
value received.
To,
Mr. C (Drawee)
576, Arera Colony, Bhopal (M.P.)
Signature
ate :....................
Pay
........................................................................................................................................
......................
a sum of Rupees..................................................................................................
ABC Bank
622, Vijay Nagar, Indore (M. P.)
Signature
⮚ provide general definitions which shall be applicable to all Central Acts and
Regulations where there is no definition in those Acts or regulations
⮚ shorten language used in parliamentary legislation and to avoid the repetition of the
same words
⮚ To state certain rules for the construction and interpretation of central acts.
⮚ Legal principals common for interpreting many statutes have been mentioned in this
one act
⮚ to avoid superfluity of language in statutes.
⮚ In a way it’s the “Law of all Laws”.
✔ GCA, 1897 is used with reference to all Central legislation and also to rules and
regulations made under a Central Act, ie, :
o Acts of the Indian Parliament (central act) along with the rules and regulations
● Preamble: Every Act has a preamble which expresses the scope, object and purpose
of the Act. the Preamble to an Act discloses the primary intention of the legislature
but can only be brought in as an aid to construction if the language of the statute is
not clear. However, it cannot override the provisions of the enactment.
Eg: Preamble of the Companies Act, 2013 states – “An Act to consolidate and amend
the law relating to companies.”
Section 3 - Definitions
Applicability: Section 3, which is the principal section containing definitions, applies to
● the General Clauses Act itself and
● to post-1897 Central Acts and Regulations
unless
● those laws contain separate definitions of their own or
● there is something repugnant in the subject or context and hence definition given in
section 3 cannot be applied.
Sec 3(3) ‘Affidavit’ shall include affirmation and • Affidavit is a written statement
declaration in the case of persons by law confirmed by oath or affirmation
allowed to affirm or declare instead of for use as evidence in Court or
swearing. before any authority.
• include affirmation and
declarations
Sec 3(7) ‘Central Act’ shall mean an Act of • The date of the commencement of
Parliament, and shall include- th
the Constitution is 26 January,
(a) An Act of the Dominion Legislature or of 1950.
the Indian Legislature passed before the
commencement of the Constitution, and
Sec 3(18) 'Document' shall include any matter written, • Must be in writing
expressed or described upon any substance
Sec 3(19) 'Enactment' shall include a Regulation or any • includes any Act (or a provision
Act ( or a provision contained therein) contained therein) made by the
made by the Union Parliament or the State Union Parliament or the State
Legislature Legislature
• Includes Rules & Regulations,
notifications (as they are enacted
by the those delegated with
power of legislature)
Sec 3(21) Financial year shall mean the year • Difference between Financial
commencing on the first day of April. Year and Calendar Year: Financial
year starts from first day of April
but Calendar Year starts from first
day of January.
Sec 3(22) A thing shall be deemed to be done in "good • anything done with due care and
faith" where it is in fact done honestly, attention, which is not malafide is
whether it is done negligently or not. presumed to have been done in
good faith
• definition of the good faith does
not apply to that enactment which
contains a special definition of the
term “good faith”
• Case: An honest purchase made
carelessly without making proper
enquiries cannot be said to have
been made in good faith so as to
convey good title.( Maung Aung Pu
Vs. Maung Si Maung)
Sec 3(27) Imprisonment shall mean imprisonment of • By section 53 of the Indian Penal
either description as defined in the Indian Code, the imprisonment is of two
Penal Code (45 of 1860) descriptions, namely, rigorous,
that is with hard labour and
simple.
Sec 3(29) 'Indian law' shall mean any Act, Ordinance, • Laws applicable before
Regulation, rule, order, bye law or other commencement of constitution.
instrument which before the • Not include 🡪 orders made under
commencement of the Constitution, had that law by any authorities
the force of law in any Province of India or
part thereof.
Sec 3(35) 'Month' shall mean a month reckoned • However where there is specific
according to the British calendar; definition given in any enactment,
such definition shall prevail
• Eg: The word "month” occurring in
s.271 (l)(a)(i) of the Income-tax
Act, 1961, was construed to mean
a period of thirty days and not a
Sec 3(36) 'Movable Property' shall mean property of • Eg: Debts, share, electricity are
every description, except immovable moveable property
property.
Sec 3(37) 'Oath' shall include affirmation and •
declaration in the case of persons by law
allowed to affirm or declare instead of
swearing.
Sec 3(38) 'Offence' shall mean any act or omission • Include Act or omission
made punishable by any law for the time +punishable by any law
being in force.
Sec 3(39) 'Official Gazette' or 'Gazette' shall mean: (i) • It is a public journal and an
The Gazette of India, or (ii) The Official authorised legal document of the
Gazette of a state. Government of India.
• published weekly by the
Department of Publication,
Ministry of Housing and Urban
Affairs. (Government of India
Press)
• As a public journal, the Gazette
prints official notices from the
government. It is authentic in
content, accurate and strictly in
accordance with the Government
policies and decisions.
(2) The definitions in the said section of the following words and expressions, that is to say,
"abet", "Chapter", "commencement", "financial year", "local authority", "master",
"offence", "part", "public nuisance", "registered", "schedule", "ship", "sign", "sub-section"
and "writing" apply also, unless there is anything repugnant in the subject or context, to
all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
• (Note: Prior to General clause Act 1897, there were similar acts called General clause Act
1868 & General clause Act 1887)
(2) In any Indian law, references, by whatever form of words, to revenues of the Central
Government or to any State Government shall, on and from the first day of April, 1950,
be construed as references to the Consolidated Fund of India or the Consolidated Fund of
the State, as the case may be.
Case: In Kolhapur Canesugar Works Ltd. V, Union of India, AIR 2000, SC 811, Supreme Court
held that Section 6 only applies to repeal and not to omissions and applies when the repeal
is of a Central Act or Regulation and not of a Rule
(1) In any Central Act or Regulation made after the commencement of this Act, it shall be
(1) Where this Act, or Central Act or Regulation made after the commencement of this Act,
repeals and re-enacts, with or without modification, any provision of a former enactment,
then references in any other enactment or in any instrument to the provision so repealed
shall, unless a different intention appears, be construed as references to the provision so
re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United
Kingdom repealed and re-enacted, with or without modification, any provision of a
former enactment, then references in any Central Act or in any Regulation or instrument
to the provision so repealed shall, unless a different intention appears, be construed as
references to the provision so re-enacted.
Example: In section 115 JB of the Income Tax Act, 1961, for calculation of book profits,
the Companies Act, 1956 are required to be referred. With the advent of Companies Act,
2013, the corresponding change has not been made in section 115 JB of the Income Tax
Act, 1961. On referring of section 8 of the General Clauses Act, book profits to be
calculated under section 115 JB of the Income Tax Act will be as per the Companies
Act,2013.
Case: In Gauri Shankar Gaur v. State of U.P., AIR 1994 SC 169, it was held that every Act
has its own distinction. If a later Act merely makes a reference to a former Act or existing
law, it is only by reference and all amendments, repeals new law subsequently made will
have effect unless its operation is saved by the relevant provision of the section of the
Act.
• This section applies also to all [Central Acts] made after the third day of
January, 1868, and to all Regulations made on or after the fourteenth day of
January, 1887.
• Example: A company declares dividend for its shareholder in its Annual General
Meeting held on 30/09/2016. Under the provisions of the Companies Act, 2013,
company is required to pay declared dividend within 30 days from the date of
(2) In this Act and in any Central Act or Regulation made after the commencement of this
Act, a description or citation of portion of another enactment shall, unless a different
intention appears, be construed as including the word, section or other part mentioned
or referred to as forming the beginning and as forming the end of the portion comprised
in the description or citation.
Citation means referring/quoting another provision to explain the existing provision. Eg:
‘securities’ have been defined under companies act using the reference of the Securities
contracts (Regulations) Act, 1956.
In this Act the expression Central Act, shall be deemed to include Ordinance made and
promulgated by the Governor General under section 23 of the Indian Councils Act, 1861 or
section 72 of the Government of India Act, 1915, or section 42 of the Government of India
Act, 1935 and an Ordinance promulgated by the President under Article 123 of the
Constitution.
Ordinances are laws that are promulgated by the President of India on the recommendation
of the Union Cabinet. They can only be issued when Parliament is not in session. They enable
the Indian government to take immediate legislative action.
Introduction
Meanings of some basic terms:
Statute:
● The term ‘Statute’ has been defined as the written will of the legislature solemnly
expressed according to the forms necessary to constitute it the law of the State.
Normally, the term denotes an Act enacted by the legislative authority (e.g.
Parliament of India).
● It means Written Laws and regulations
● The terms ‘law’ is defined as including any ordinance, order, bye-law, rule,
regulation, notification, and the like.
Documents:
● Section 3 of the Indian Evidence Act, 1872 states that ‘document’ means any matter
expressed or described 🡪 upon any substance 🡪 by means of letters, figures or marks
🡪 used/intended to be used for recording that matter
● Section 3(18) of the General Clauses Act, 1897 states that ‘document’ shall include
any matter written, expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means which is intended to be used, or
which may be used, for the purpose of recording this matter.
● Example: A writing is a document, any words printed, photographed are documents
● Elements of document:
o Matter: Purpose
o Record: mutual or mechanical device employed on the substance (eg: pen)
o Substance: element on which a mental or intellectual elements comes to find
a permanent form (eg: paper)
o Means: letters, any figures, marks, symbols which can be used to communicate
between two persons
Instrument:
● Formal written legal document which creates or confirms a right or records a fact. Eg:
transfer deed
● Purpose: Right/liability of parties is created, transferred, extended, extinguished,
recorded
● Example: It is a formal writing of any kind, such as an agreement, deed, charter or
record, drawn up and executed in a technical form
Interpretation:
● Process by which real meanings of act/ legal language & intention behind legislature
is ascertained.
● It is the process by which the Courts seek to ascertain the meaning of the legislature
through the medium of the authoritative forms in which it is expressed.
● Importance/Need for Interpretation:
o Through interpretation, a person is aided in arguing, contesting and
interpreting the proper significance of a section, a proviso, explanation or
schedule to an Act or any document, deed or instrument.
o Two different set of people create legislature and use/interpret it. There may
be bridge in understanding.
o Times in which legislature is prepared and interpreted may be different.
o Process of interpretation makes use of technical legal jargon and methods as
compared to common law rules
o No language is so perfect as to leave no ambiguities. It can be interpreted to
mean many things.
o True intention of law at the time of its writing need to be considered
o Social conditions are different over time leading to different interpretations vs
intention with which law was written
o Statute is enforceable at law, howsoever unreasonable it may be. Until it is
altered or modified or amended, the court has no choice but to enforce the law
as it is.
Legal Doctrinal
when there is an actual rule of law when there is no law to interpret and
which binds the Judge to place a there is need to discover ‘real’ and
certain interpretation of the statute ‘true’ meaning of the statute.
Classification of Interpretation
Literal/grammatical Functional/logical
It regards conclusively the verbal It departs from the letter of the law
expression (words and language) of and seeks elsewhere for some other
the law. It does not look beyond. and more satisfactory evidence of
This method is used first. the true intention of the legislature
This method is used when literal
interpretation fails.
Where there are two constructions reasonably applicable to a provision, one of which is
mechanical and based on the rules of grammar, while the other is vibrant and more in tune
with the basic intention of the Act of Parliament, the latter shall be preferred to the former.
(Arora Vs. State of UP)
Interpretation/Construction
Interpretation Construction
Where the language is simple and If such reading leads to absurdity and
unambiguous, it is to be read with the words are susceptible of another
the clear intention of the meaning, same has to be read as a
legislation🡪 giving to the words whole. Drawing of conclusion
used by the legislature their beyond the direct expression of the
ordinary, natural and grammatical text 🡪 called construction
meaning. 🡪 called interpretation
Eg: Certain words which have acquired a definite meaning over a period of time are given
that meaning for interpretation.
Case (Interpretation vs Construction): It is the duty of the courts to give effect to the
meaning of an Act when the meaning can be equitably gathered from the words used. Words
of legal import occurring in a statute which have acquired a definite and precise sense, must
be understood in that sense. (State of Madras v. Gannon Dunkerly Co. AIR 1958)
Process of Interpretation:
Statutory. illustrated by
specific definition contained
in individual Acts
Aids/tools for the
purpose of
interpretation
common law rules of
interpretation
Non-statutory-
illustrated by
case-law relating to the
interpretation of statutes
Rules of Interpretation
Primary Rules
1. Rule of Literal Construction:
✔ words, sentences and phrases of a statute should be read in their ordinary,
natural and grammatical meaning so that they may have effect in their widest
amplitude.
✔ A word which has a definite and clear meaning should be interpreted with that
meaning only, irrespective of its consequences.
✔ Sometimes, occasions may arise when a choice has to be made between two
interpretations – one narrower and the other wider or bolder🡪 narrower
interpretation must be considered unless it would fail to achieve the manifest
purpose of the legislation
✔ For example, when we talk of disclosure of the nature of concern or interest,
financial or otherwise’ of a director or the manager of a company in the subject
we have to interpret in its broader sense that any concern or interest containing
any information and facts that may enable members to understand the
meaning, scope and implications of the items of business and to take decision
thereon. Even facts known to family shall be disclosed frankly.
a) Natural and grammatical meaning Statute are to be first understood in their natural,
ordinary, or popular sense & according to their plain, literal and grammatical
meaning. Only if it involves any absurdity, repugnancy, inconsistency, then it must be
further constructed using other principles.
In a question before the court whether the sale of betel leaves was subject to sales
tax. The Supreme Court held that betel leaves could not be given the dictionary,
technical or botanical meaning when the ordinary and natural meaning is clear and
unambiguous. Being the word of everyday use it must be understood in its popular
sense by which people are conversant with it as also the meaning which the statute
dealing with the matter would attribute to it. Therefore, the sale of betel leaves was
liable to sale tax. (Ramavtar V. Assistant Sales Tax Officer, AIR 1961 SC 1325)
b) Explanation of the Rule: Natural, ordinary or popular meaning which they have in
relation to the subject matter with reference & context in which they have been used
in the statute shall be used. Eg: Livestock can have many meanings. The meaning
most relevant to the particular act must be used.
c) Exact meaning, leading to loose meaning: As every word has a secondary meaning
too. Whichever meaning best suits the statute, shall be used in interpretation. Eg:
word ‘obtain’ may mean request to get or acquire without permission. If the second
meaning is preferred in law, it shall be construed.
d) Technical words are understood in the technical sense only Eg: ‘practice’ term
technically means functions of acting and pleading on behalf of a litigant party
1. Effect of usage: It means old statutes and documents should be interpreted as they
would have been at the time when they were enacted/written.
Two relevant Latin maxims are:
i. ‘Optima Legum interpresest consuetudo’ (the custom is the best interpreter of the
law); and
ii. ‘Contempranea expositoest optima et fortissima in lege’ (the best way to interpret
a document is to read it as it would have been read when made).
2. expressio unius est exclusio alterius: the explicit mention of one (thing) is the
exclusion of another. When one or more things of a class are expressly mentioned
others of the same class are excluded. Eg: law allows only a natural person to me
member of OPC. So no other type of person can be.
3. contemporanea exposition: That the meaning of words in a document are to be
understood in the sense which they bore at the time of the document. Eg: the
definitions contained in section 2 of Co. Act 2013 must be used while interpreting co.
law, not the general dictionary meanings/common parlance.
Aids/tools to interpretation/construction
Internal External
These are parts of the enactment These are tools outside of the
can be used to interpret it better particular enactment, which help in
its interpretation
Types:
Long Title Types:
Preamble Historical Setting
Heading and Title of a Chapter Consolidating Statutes & Previous Law
Marginal Notes Usage
Definitional Sections/Interpretation Earlier & Later Acts and Analogous Acts
Clauses Dictionary Definitions
Illustrations Use of Foreign Decisions
Proviso
Explanation
Schedules
‘Read the Statute as a Whole
(ii) Ambiguous definitions: Sometime we may find that the definition section
may itself be ambiguous, and so it may have to be interpreted in the light
of the other provisions of the Act and having regard to the ordinary meaning
of the word defined. Such type of definition is not to be read in isolation.
It must be read in the context of the phrase which it defines.
Termination of service of a seasonal worker after the work was over does
not amount to retrenchment as per the Industrial Disputes Act, 1947. [Anil
Bapurao Karase v. Krishna Sahkari Sakhar Karkhana, AIR 1997 SC 2698]
6. Illustrations :
• These are examples included in law to elaborate its usage.
• It is part of statute
7. Proviso :
• It starts with word ‘provided that’. These are part of the relevant sections and
mentioned after the section. Law is incomplete without them.
• They mention
• Further explanation of the section including terms and conditions or
• Exception to any section or
• the condition without which such law shall not be applicable to the
particular situation.
• Eg: FY for evey company ends on 31st march, provided that for any company
which has foreign subsidiary/holding may seek permission to change its FY
8. Explanation:
• The words most repetitively used in statute are defined in the definition
section.
• However, there are some words that are used in only a few section. Hence,
their meaning is defined under those sections by way of explanation.
• Eg: ‘Office or place of profit’ u/s 188 is defined by way of explanation under
the section.
• all the words in the document/deed concerned are to be considered in their ordinary,
natural sense
• same word cannot have two different meanings in the same document, unless the
context compels the adoption of such a rule
• Words commonly used with a specific meaning due to custom of trade shall be
considered over technical meaning.
• Parts of deeds shall be harmoniously constructed with other clauses