IBBI amends the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016 Press Release No. IBBI/PR/2018/30 dated 11th October 2018issued by IBBI The Insolvency and Bankruptcy Board of India (Board) has notified the Insolvency and Bankruptcy Board of India (Insolvency Professionals) (Second Amendment) Regulations, 2018 today. 2. The salient amendments are: a. An insolvency professional shall pay to the Board, a fee calculated at the rate of 0.25 percent of the professional fee earned for the services rendered by him

Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2018 F. No. CCI/CD/Amend/Comb.Regl./2018 dated 9th October 2018issued by CCI In exercise of the powers conferred by section 64 of the Competition Act, 2002 (12 of 2003), the Competition Commission of India hereby makes the following regulations further to amend the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, namely:— 1. Short title and commencement.— (1) These regulations

Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations, 2018 No. IBBI/2018-19/GN/REG032 dated 5th October 2018issued by IBBI In exercise of the powers conferred by clause (t) of subsection (1) of section 196 read with section 240 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Insolvency and Bankruptcy Board of India hereby makes the following regulations further to amend the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process

IBBI amends the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 Press Release No. IBBI/PR/2018/28 dated 5th October 2018issued by IBBI The Insolvency and Bankruptcy Board of India (IBBI) has notified the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations, 2018 today. 2. The Regulations earlier required the resolution professional to circulate the minutes of the meeting by electronic means to all members of the committee of creditors

Relaxation of additional fees and extension of last date of in filing of forms MGT-7 (Annual Return) and AOC-4 (Financial Statement) under the Companies Act, 2013 for the State of Kerala General Circular No.09/2018 dated 5th October 2018issued by MCA keeping in view the requests received from various stakeholders stating that due to heavy rains and floods in the State of Kerala, the normal life/work was affected, it has been decided to relax the additional fees payable to companies having registered office

Liberalization of External Commercial Borrowings (ECB) Policy A.P. (DIR Series) Circular No.10 dated 3rd October 2018 issued by RBI Attention of Authorized Dealer Category-I (AD Category-I) banks is invited to paragraphs 2.4.5, 2.4.6 and 2.5 of Master Direction No.5 dated January 1, 2016 on “External Commercial Borrowings, Trade Credit, Borrowing and Lending in Foreign Currency by Authorised Dealers and Persons other than Authorised Dealers”, as amended from time to time. 2. Under the extant policy, ECB can be raised under tracks I and III for

Sub-sections (1) and (12) of Section 132 of the Companies Act, 2013 come into force with effect from 1st October 2018 S.O. 5098(E) dated 1st October 2018issued by MCA In exercise of the powers conferred by sub-section (3) of Section 1 of the Companies Act, 2013 (18 of 2013), the Central Government hereby appoints the 1st October, 2018 as the date on which the provisions of sub-sections (1) and (12) of Section 132 of the said Act shall come into force. © All

Constitution of National Financial Reporting Authority with effect from 1st October, 2018 S.O. 5099(E) dated 1st October 2018issued by MCA In exercise of the powers conferred by sub-section (1) of section 132 of the Companies Act, 2013 (18 of 2013), the Central Government hereby appoints the 1st October, 2018 as the date of constitution of National Financial Reporting Authority. © All rights reserved with Jus Scriptum.

Establishes the Debts Recovery Tribunal at Guwahati S.O. 4997(E) dated 27th September 2018issued by Ministry of Finance In exercise of the powers conferred by section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (51 of 1993), and in supersession of notifications of the Government of India in the Ministry of Finance (Department of Economic Affairs) numbers G.S.R. 7 (E), dated the 7th January, 1997 and G.S.R. 260 (E), dated the 24th March, 2000 published in the

Amendment in the area of jurisdiction of Debt Recovery Tribunal , Siliguri S.O. 4996(E) dated 27th September 2018issued by Ministry of Finance In exercise of the powers conferred by section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (51 of 1993), the Central Government hereby makes the following amendments in the notification of the Government of India in the Ministry of Finance (Department of Financial Services) number S.O. 831(E), dated the 15th March, 2017 published

Reconstitution of NCLT, Mumbai Bench File No. 10/03/2018-NCLT dated 26th September 2018issued by NCLT Consequent to order no.10/36/2016-NCLT dated 18.9 2018. Shri B.S.V. Prakash Kumar. Member (Judicial) has been relieved from NCLT Mumbai and Shri V.P. Singh. Member (Judicial) has joined at NCLT Mumbai. Accordingly, the Bench-I at NCLT Mumbai is hereby reconstituted as under: NCLT, Mumbai Bench-I 1 . Shri. V.P. Singh, Member (Judicial) 2. Shri Ravikumar Duraisamy, Member (Technical) This is in modification of Order of even number dated 5.3.2018. This shall come into

Reconstitution of NCLT, Allahabad Bench File No. 10/03/2018-NCLT dated 25th September 2018issued by NCLT Consequent to order no.10/36/2016-NCLT dated 18.9.2018. Shri. V.P. Singh. Member (Judicial) has been relieved from NCLT Allahabad and Shri. Bikki Raveendra Babu, Member (.Judicial) has joined at NCLT Allahabad. Accordingly. the Bench at NCLT Allahabad is hereby reconstituted as under: NCLT, Allahabad Bench 1 . Shri. Bikki Raveendra Babu, Member (Judicial) 2. Ms. Saroj Rajware. Member (Technical) This is in modification of Order of even number dated 9.3.2018. This shall come

Companies (Registered Valuers and Valuation) Third Amendment Rules, 2018 G.S.R. 925(E) dated 25th September 2018issued by MCA In exercise of the powers conferred by section 247 read with section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Registered Valuers and Valuation) Rules, 2017, namely:- 1. (1) These rules may be called the Companies (Registered Valuers and Valuation) Third Amendment Rules, 2018. (2) They shall come into force on

Reconstitution of NCLT, Chennai Bench File No. 10/03/2018-NCLT dated 24th September 2018issued by NCLT Consequent to the order no.10/36/2016-NCLT dated 18.9.2018. Shri K. Anantha Padmanabha Swamy, Member (Judicial) has been relieved and Shri B.S.V Prakash Kumar. Member (Judicial) has joined at NCLT Chennai. Accordingly, the Division Bench at NCLT Chennai is hereby reconstituted as under: NCLT, Chennai Bench Division Bench 1 . Shri B.S.V Prakash Kumar, Member (Judicial) 2. Shri S. Vijayaraghavan, Member (Technical) This is in modification of Order of

Reconstitution of NCLT, Hyderabad Bench File No. 10/03/2018-NCLT dated 24th September 2018issued by NCLT Consequent to the order no.10/36/2016-NCLT dated 18.9.2018. Shri Bikki Ravendra Babu, Member (Judicial) has been relieved and Shri K. Anantha Padmanabha Swamy. Member (Judicial) has joined at NCLT Hyderabad. Accordingly, the Bench-I1 at NCLT Hyderabad is hereby reconstituted as under: NCLT, Hyderabad Bench Bench-II Shri K. Anantha Padmanabha Swamy, Member (Judicial) This is in modification of Order of even number dated 19.4.2018. This shall come into force with effect from 25.9.2018. The

Know Your Client requirements for Foreign Portfolio Investors (FPIs) CIR/IMD/FPIC/CIR/P/2018/131 dated 21st September 2018issued by SEBI SEBI Board in its meeting held on September 18, 2018, has after considering the interim recommendations of SEBI Working Group under the chairmanship of Shri H R Khan (hereinafter referred as HR Khan group) in relation to the circular No CIR/IMD/FPIC/CIR/P/2018/64

  Eligibility conditions for Foreign Portfolio Investors (FPIs) CIR/IMD/FPIC/CIR/P/2018/132 dated 21st September 2018issued by SEBI SEBI Board in its meeting held on September 18, 2018, has after considering the interim recommendations of SEBI Working Group under the chairmanship of Shri H. R. Khan (hereinafter referred as HR Khan group) in relation to the circular No CIR/IMD/FPIC/CIR/P/2018/64 dated

Companies (Indian Accounting Standards) (Second Amendment) Rules, 2018 G.S.R. 903(E) dated 20th September 2018issued by MCA In exercise of the powers conferred by section 133 read with section 469 of the Companies Act, 2013 (18 of 2013) and sub-section (1) of section 210A of the Companies Act, 1956 (1 of 1956), the Central Government, in consultation with the National Advisory Committee on Accounting Standards, hereby makes the following rules further to amend the Companies (Indian Accounting Standards) Rules, 2015, namely:— 1. Short title

Amendment to SEBI (Credit Rating Agencies) Regulations, 1999 and modification to SEBI Circular dated May 30, 2018 SEBI/HO/MIRSD/DOS3/CIR/P/2018/130 dated 19th September 2018issued by SEBI A. Securities and Exchange Board of India (Credit Rating Agencies) (Second Amendment) Regulations, 2018 1. Vide Gazette Notification No. SEBI/LAD-NRO/GN/2018/36 dated September 11, 2018, in respect of Securities and Exchange Board of India (Credit Rating Agencies) (Second Amendment) Regulations, 2018, as laid

Companies (Corporate Social Responsibility Policy) (Amendment) Rules, 2018 File No. 05/03/2018-CSR dated 19th September 2018issued by MCA In exercise of the powers conferred by section 135 and sub- sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Corporate Social Responsibility Policy) Rules, 2014, namely:- 1. Short title and commencement. - (1) These rules may be called the Companies (Corporate Social Responsibility Policy) (Amendment) Rules, 2018. (2) They

Amended section 29A is effective from the date of Ordinance which introduced that section as every statute is prima facie prospective Every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. Amended section 29A is effective from the date of passing of Ordinance, that is, 23rd November, 2017. Insolvency and Bankruptcy Code, 2016 – Section 29A – Resolution applicant – Persons not eligible to be – Amended section 29A first introduced

Declining to supplant the mechanism laid down in the Code for corporate insolvency resolution process by substituting them with a mechanism under judicial directions, the Supreme Court, in exercise of its jurisdiction under article 142, issued, amongst others, directions for re-initiation of resolution of insolvency process afresh and renewing the period of 180 days prescribed for completion of resolution process In exercise of the power vested under article 142 of the Constitution, the Supreme Court, having regard to the facts

IBBI has no locus to file appeal in the Appellate Tribunal challenging finding of Adjudicating Authority. It is for resolution professional to find out that a resolution plan is contrary to section 29A Where the Insolvency and Bankruptcy Board of India (IBBI), a regulatory body, has no locus standi, not being an aggrieved person, it cannot challenge the finding given by Adjudicating Authority, preferring an appeal under section 61. From clause (g) of section 196 relating to powers and functions

No civil court can exercise jurisdiction in respect of any matter which a Debt Recovery Tribunal / Debt Recovery Appellate Tribunal alone is empowered to determine No civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter, suit or proceeding in respect of any matter which a Debt Recovery Tribunal or Debt Recovery Appellate Tribunal is empowered by or under the Act to determine and no injunction can be granted by any court or authority

Where resolution process has reached finality and the committee of creditors has rejected the resolution plan, the Adjudicating Authority has no option but to order for initiation of liquidation process Once the resolution process reaches finality and the committee of creditors reject the resolution plan in view of sections 30 and 31, the Adjudicating Authority has no other option but to order for initiation of liquidation process. Insolvency and Bankruptcy Code, 2016 – Sections 10, 30, 31 and 33 –Insolvency resolution

Where there were exceptional circumstances for which waiver could be allowed, the Tribunal had rightly exercised its discretion Where there were conflicting documents, some showing that respondents were members of the company at some point of time, while others showing that they were not members, and the respondents made an application for waiver of conditions precedent for maintaining petition for relief against oppression/mismanagement and the Tribunal exercised discretion to allow waiver in such exceptional circumstances under the proviso to sub-section

Where Tribunal has exercised discretion judicially passing interim orders to protect interest of company, no interference by the Appellate Tribunal is called for Where National Company Law Tribunal has exercised discretion judicially when ad interim order was sought from it to protect the interest of the company till the petition for relief in cases of oppression was decided, the Appellate Tribunal has declined to interfere in the discretion exercised by it. Companies Act, 2013 – Sections 241, 242 and 243

Sending a calendar of events cannot be called as service of notice as to dispense with the duty of sending notice with agenda. Therefore, meetings held without notice for increase of authorised share capital are invalid Whenever any meeting is held either Board meeting or general meeting, duty is cast upon the persons holding meeting to send the respective notice with agenda items as prescribed under the Act. Sending such notice with agenda and documents does not get dispensed by sending

I A reasonable expectation to be in the know of things can only be based on reasonable inference drawn from foundational facts The mere fact that the appellants promoted two joint venture companies, one of which ultimately merged with the Satyam Computer Services Ltd. (SCSL), and that he was a co-brother of B Ramalinga Raju, cannot be stated to be foundational facts from which an inference of reasonably being expected to be in the knowledge of confidential information be formed.

Order of moratorium is applicable to proceedings against corporate debtor and guarantor if pending before any court. It is not applicable for triggering corporate insolvency resolution process under section 7 or 9 against the guarantor or personal guarantor The order of moratorium would be applicable to the proceedings against the corporate debtor and the guarantor, if pending before any court. However, such order of moratorium will not be applicable for triggering corporate insolvency resolution process under section 7 or 9 against

Where the scheme has complied with the legal requirements on amalgamation, it is liable to be sanctioned Allotment of shares at a premium and credited as fully paid up by the transferee-company in a scheme of amalgamation with two private companies is no ground for non-sanctioning of the scheme by the Tribunal and if scheme complies with legal requirements, it has to be sanctioned. Companies Act, 2013 – Section 232 – Amalgamation/Compromise – Tribunal’s sanction to scheme – Appeal to Appellate

Delineation of relevant market is not mandatory in terms of the statutory scheme of the Act, particularly having regard to the statutory presumption contained in section 3 itself, that is, anti-competition agreements listed in sub-section (3) of section 3 are per se treated as adversely affecting the competition to an appreciable extent Where in paragraph 8 of the judgment of the Supreme Court in CCI v. Coordination Committee [2017] 137 CLA 84, it is noted that sub-section (3) of section

Where if the reliefs sought by way of amendment of sanctioned scheme of arrangement were granted, that would effectively amount to tampering with the essence of the scheme, it is impermissible to grant such amendment Where windmill business was transferred to the transferee-company under a scheme of arrangement between two applicants, and the scheme was sanctioned by the court and made effective, and the transferor-company demerged all its business to transferee-company, it is not permissible to transferor-company to seek amendment of

Right to main appeal being statutory cannot be denied for not depositing 10 per cent of amount of penalty attached to the order for stay of penalty Where the order of the Commission imposing penalty for indulging in anti-competitive and unfair trade practices was challenged and along with the appeal the applicant had also filed application for stay of the operation of the order of the Commission during the pendency of the appeal, and appeal was admitted, and stay was granted

A person failing at the threshold to meet requirement of ‘any person aggrieved’ cannot maintain application under section 17 in relation to sale of secured asset by the bank. Where a person at the very threshold fails to meet the standard of any person aggrieved, that is, any person who, prima facie, has a legally founded tangible grievance but claims rights under a document hit by sub-section (3) of section 13, he cannot be said to be ‘a person aggrieved’,

The Tribunal under section 424 could regulate procedure before it and while dealing with the matter could exercise inherent powers to do justice between the parties when terms of consent decree were found unworkable Where the Company Law Board had given consent decree in a case of oppression and mismanagement, and subsequently directions in terms of the consent decree were given by the N CLT, but it found that due to changed situation execution of the said terms had become unworkable,

Sub-section (3A) of section 13 being mandatory in nature, the debtor is not entitled to the discretionary relief where creditor granted sufficient opportunity and time to the debtor to repay debt There is nothing in the legislative scheme of sub-section (3A) of section 13 which requires the court to consider whether or not the word ‘shall’ is to be treated as directory. There is clear intendment to provide for locus poenitential which requires an active consideration by the creditor and a

Interim award of the Tribunal on issue of limitation can be challenged separately and independently even though it does not relate to arbitral tribunal’s own jurisdiction An interim award on issue of limitation can be challenged separately and independently under section 34. Such an award, which does not relate to arbitral tribunal’s own jurisdiction under section 16, does not have to follow the drill of sub-sections (5) and (6) of section 16. The Parliament may consider amending section 34 so

In the absence of response to statutory notice of demand, there is presumption of inability to pay, and court may admit winding up petition Where no response to a statutory notice of demand has been made, it is settled law that the court may pass a winding up order on the basis, that amount claimed has not been denied by the company, and there is presumption of inability to pay the company. Companies Act, 1956 – Sections 433(e) and 434 – Winding

Where clauses of the arbitration agreement merely relate to the works and quality, it cannot be said that arbitration clause is intended to be part of contract As per sub-section (5) of section 7, an arbitration clause contained in an independent document can also be imported and engrafted in the contract between the parties by reference to such independent document in the contract even if there is no specific provision for arbitration. However, such a course can be adopted only

In this article, the author makes an indepth analysis and suggests a solution to complex situation for preparing two separate secretarial audit reports in listed company and its material unlisted Indian subsidiaries. The author also discusses some allied issues simultaneously, namely, (i) need for audited corporate governance report by a company secretary in practice, (ii) merger of Form MGT-8 with Form MR-3, and (ii) appointment of secretarial auditor at annual general meeting for a fixed term of 3-5 years.

False statement to the Competition Commission regarding combinations M [2018] 144 CLA (Mag.) 33 Surendra U Kanstiya* The Competition Commission of India has a wonderful practice of approving the combination notices in a prompt manner. It is often observed that the information furnished by the parties, while filing the notice, are not complete. As a result the Commission has to call for further information which results into the unnecessary delays. The Commission is empowered to impose penalties on the erring entities for furnishing

Once a financial creditor has initiated corporate insolvency resolution process against corporate debtor and enforces the security interest against the personal guarantor of the corporate debtor, the question arises whether the moratium approved by the committee or creditors and the Adjudicating authority will also be applicable on the personal guarantor. This article examines this question in the light of the order of the Appellate Tribunal in the case of State Bank of India v. Ramakrishna.

In this article, author analyses complexity and nitty-gritty of compliances of provisions contained in newly substituted section 90 of the Companies Act, 2013.

In this article, the author has made an attempt to encapsulate the various requirements related to issue of global depository receipt.

In this article, the author highlights the process, duties and rights of the Insolvency Professional and covers up to completion of liquidation with decided case law.

This article is intended to highlight impact and fallout of the Amendment Ordinance.

In this critical study, the author highlights changes in law governing winding up petition under the Companies Act, 1956 and corporate insolvency resolutions/liquidation under the Insolvency and Bankruptcy Code, 2016. He also examines critical issues that have come up before the National Company Law Appellate Tribunal.

In this Article, the author deliberate upon whether the accumulated profits of the company has to be declared and distributed as the interim dividend or whether the law provides for limitations in declaration of such dividend to the shareholders in the event of inadequacy of profits in the year of declaration of dividend.

Institute of Company Secretaries of India (ICSI) has notified the revised ‘Secretarial Standard on Board Meetings’ (SS 1) and ‘Secretarial Standard on General Meetings’ (SS 2) to come into force with effect from 1st October, 2017, just after a gap of a little more than a couple of years. The existing SS 1 and SS 2 had come into force on 1st July, 2015. In this article, the author critically examines these revised Secretarial Standards.

In this article, the author answers in negative the question as to whether disqualification under sub-section (2) of section 164 would result into vacation of directorship in all companies in which a person is a director.

This article deliberates on the question as to whether independent directors can be held liable for the failure of the company to pay out the declared divided.

This article is intended to highlight judgment of the Supreme Court in the case of Innoventive Industries Ltd. v. ICICI Bank [2017] 140 CLA 39 upholding order of the National Company Law Appellate Tribunal that Insolvency Code shall have effect notwithstanding the provisions of any other law for the time being in force. The Supreme Court settled the law whenever there is conflict between the State law and Central law, it is the Central law which would prevail over the

The recent move of the Indian policymakers of abolition of the Foreign Investment Promotion Board in an attempt to boost capital influx is, undoubtedly, the end of an era and the new model of scrutinising the foreign investment proposals has already come into being. This article endeavours to trace the evolution of the inter-ministerial Board till its demise, and thereby critically analyze the new model, in the form of Standard Operating Procedure, so as to conclude as to whether this

In this article, the author explains the expressions ‘dispute’ and ‘existence of dispute’ defined in clause (6) of section 5 and clause (a) of sub-section (2) of section 8 of the Insolvency and Bankruptcy Code, 2016 respectively, in the context of initiation of corporate insolvency resolution process by the operational creditor under section 9 of that Code.

In this article, the author highlights aspect of corporate social responsibility under the Companies Act, 2013 and the Income-tax, 1961.

A well-designed product is not just a pleasure to use, but also a delight to behold. The value of a product is always a combined evaluation of how they are appealing to eye and how can we use them by protecting our right to use without any infringement of rights. Intellectual property (IP) violations remain a global concern. This article discusses the IP attached to the broadcasting shows.

The Insolvency and Bankruptcy Code, 2016 passed by the Parliament is a welcome overhaul of the existing framework dealing with insolvency of corporates, individuals, partnerships and other entities. It paves the way for much needed reforms while focusing on creditor driven insolvency resolution. In this article, the author highlights challenges that are ahead for implementation and administration of the Code.

In this article, the authors first explain what is takeover and then discuss anti-takeover stategies.

The Singapore Companies (Amendment) Act, 2014 has made several legislative changes to the Companies Act, 1967. These changes were effected in two phases. The first phase was implemented on 15th June 2015 ; second phase came into effect from 3rd January, 2016. These changes, which were made with a view to easing to do business, have many innovations. In this article the author discusses some of these innovations and concludes these innovations, if adopted in the Companies Act, 2013, will

Director – Vacation of office under sub-section (2) of section 167 – When does it take effect – Vacation would be instantaneous on the occurrence of the specified event.

Independent director – Status on being appointed as an occupier of company of which he is a director – Would he lose his status as an independent director – Independent director cannot be appointed as an occupier of the factory owned by the company.

Board of directors – Its status where an interim resolution professional (‘IRP’) has been appointed under section 17(1) of the Insolvency and Bankruptcy Code, 2016 – On the appointment of an IRP to a company, its directors would not cease to hold the office of the director of the company ; but they would be guided in the discharge of their duties by the IRP.

E-voting on resolutions placed before a general meeting – Should preference shareholders not be taken into account for computing 1000 shareholders – In computing 1000 shareholders mandatory application of section 108 read with rule 20(2) of the Companies (Management and Administration) Rules, 2014 would trigger in regard to resolutions before a general meeting.

Auditor in office – Prohibited services which he cannot undertakes during the tenure of his appointment – Since the tenure of his appointment would partly fall in an earlier financial year in which annual general meeting is held and partly in subsequent financial year, it is during this tenure of appointment the auditor is prohibited from undertaking the services spelt out in section 144.

Bonus shares – Allotment to holders of partly paid up shares having no right to get bonus shares – Would partly paid-up share cover partly paid-up preference shareholders – As preference shareholders are not entitled to bonus shares, it would be immaterial whether those shares are paid-up or partly paid-up. Therefore, bonus shares would not affect rights of preference shareholders and their existence would not hamper in allotting shares.

Securities premium – Can it be written off against accumulated losses – For the purposes of reduction of securities premium, the same is equivalent to share capital and that reduction of share capital could be undertaken for any purpose including for wiping off of accumulated losses and reduction of securities premium could be undertaken by a company for wiping off of accumulated losses.

Independent director – Re–appointment of – Should special resolution be passed before making the reappointment – The power to reappoint an independent director already in office has not been conferred on the company in general meeting while the power to determine his eligibility to be reappointed has been conferred on the company in general meeting. Therefore, special resolution has to be passed by the company in general meeting before the reappointment is made.

Compromise or arrangement – Approval of members by voting in person or by proxy or postal ballot – Can member vote through proxy in a meeting convened by NCLT to obtain its approval to scheme under section 230 – Member can vote through proxy if he has decided not to vote by post or in any electronic mode but to vote in a meeting.

Board of directors – Can it act on the basis of enabling powers spelt out in the Act in the absence of powers in the articles of association of a company – Board of directors cannot exercise a power on the ground that it is an enabling power in the Act, unless there is a suitable provision in the articles of association.

Equity shares – Preferential allotment to the holding company of a listed company – Does it attract section 188 – Even though the subject matter of the resolution relating to preferential allotment is shares, they are not ‘goods’ in the eye of law and as such the provisions of section 188 would have no application to a resolution for the allotment of shares preferentially to the promoters.

Section 8 company – Consolidation of financials with financials of its holding company – Is company required to prepare consolidated financial along with the subsidiary. As no economic benefit would accrue to the holding company, it need not prepare consolidated financial statement along with the subsidiary, which is a section 8 company and it will be sufficient if the holding company comply with Schedule III to the Act and specify the reasons for not consolidating the accounts of its subsidiary

Shares in a public company – Free transferability of shares – Does sub-section (2) of section 58 impose restriction on the right of shareholder to deal with his shares in terms of consensual agreement – Free transferability does not impose any restriction on the right of a shareholder.

Compromise or arrangement – Could amendment be made to scheme in a court convened meeting for purpose of ascertaining wishes of those entitled to attend the meeting – An amendment could be moved, considered and voted upon, if the amendment is to correct a grammatical or factual error and not for changing the basic purpose or character of the scheme.

Arrangement – Order sanctioning scheme of arrangement by two different High Courts – Are they liable to stamp duty under respective State stamp duty laws – In view of the Supreme Court judgment in Hindustan Lever Ltd. v. State of Maharshtra [2003] 57 CLA 256 (SC) orders sanctioning scheme of arrangement by two different High Courts, even though the subject matter is the same, where the companies who are parties to the scheme are situate in two different States, would

Transfer of shares – Refusal to register – Jurisdiction of National Company Law Tribunal to direct registration of transfer of shares on the ground of breach of contractual obligations – As sub-section (4) of section 58 enlarges the powers of a company to refuse registration of transfer of shares on the ground other than those mentioned in sub-section (3) of section 111A of the 1956 Act, the Board of directors could refuse registration for the reason that it would lead

Financial statement – Mandatory requirement to prepare consolidated financial statement by a company along with its subsidiary incorporated under section 8 – Since no economic benefit or resource would accrue to the holding company from its subsidiary, it is not mandatory for the holding company to prepare consolidated financial statement along with its subsidiary which is section 8 company.

Reference to arbitration – Dispute between shareholder and company – Can a shareholder seek to refer to arbitration a dispute between him and a company in the light of arbitration clause in an incidental ancillary object in the memorandum of association – Shareholder cannot use arbitration clause for disputes arising out of his holding shares in the company.

Transfer/transmission of shares – Submission of self attested PAN card for registration of – Is it mandatory – Since every person is not mandatorily required to obtain a permanent account number and to possess a PAN card, a mandatory requirement cannot be fastened on a person, not required to possess a PAN card, to furnish a self-attested copy of the same to effectuate his transaction in securities.

Video conferencing – Matters which cannot be considered in a Board meeting through – Items prohibited under rule 4 of the Companies (Meetings of Board and its Powers) Rules, 2014 could be considered in a meeting of the Board where one or more directors participate through video conferencing or other audio visual means.