Note
on relevant sections of the Companies Act, 2013[1],
containing the statement “as authorised”:-
S.
No
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Section
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Provision
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1.
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2(54): Definition
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“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.
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2.
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2(68): Definition
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“private company” means a
company having a minimum paid-up share capital of one lakh rupees or such
higher paid-up share capital as may be prescribed, and which by its articles,—
(i)
restricts the right to transfer its shares;
(ii)
(ii) except in case of One Person Company, limits the number of its
members to two hundred:
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3.
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4(7): Memorandum
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Any provision in the memorandum or articles,
in the case of a company limited by guarantee and not having a share capital,
purporting to give any person a right to participate in the divisible profits
of the company otherwise than as a member, shall be void.
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4.
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5(3) :Articles
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The articles may contain provisions for
entrenchment to the effect that specified provisions of the articles may be
altered only if conditions or procedures as that are more restrictive than
those applicable in the case of a special resolution, are met or complied
with.
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5.
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18(1): Conversion
of companies already registered.
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A company of any class
registered under this Act may convert itself as a company of other class
under this Act by
alteration of memorandum and articles of the company in accordance
with the provisions of this Chapter
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6.
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43(ii)(b): Kinds of share
capital
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repayment, in the case of a
winding up or repayment of capital, of the amount of the share capital
paid-up or deemed to have been paid-up, whether or not, there is a
preferential right to the payment of any fixed premium or premium on any
fixed scale, specified
in the memorandum or articles of the company;
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7.
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44: Nature of shares or
debentures
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The shares or debentures or
other interest of any member in a company shall be movable property
transferable in the manner provided
by the articles of the company.
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8.
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48(1)(a) & 48(1)(b):
Variation
of shareholders’ rights
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Where a share capital of the
company is divided into different classes of shares, the rights attached to
the shares of any class may be varied with the consent in writing of the
holders of not less than three-fourths of the issued shares of that class or
by means of a special resolution passed at a separate meeting of the holders
of the issued shares of that class,—
(a) if
provision with respect
to such variation is contained in the memorandum or articles of the
company;
(b) in
the absence of any such provision in the memorandum or articles, if such
variation is not prohibited by the terms of issue of the shares of that
class:
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9.
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50(1): Company
to accept unpaid share capital, although not called up
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A company may, if so authorised by its
articles, accept from any member, the whole or a part of the amount
remaining unpaid on any shares held by him, even if no part of that amount
has been called up
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10.
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51: Payment
of dividend in proportion to amount paidup.
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A company may, if so authorised by its
articles, pay dividends in proportion to the amount paid-up on each
share.
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11.
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55(2): Issue
and Redemption of preference
shares.
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A company limited by shares may, if so authorised by its
articles, issue preference shares which are liable to be redeemed
within a period not exceeding twenty years from the date of their issue
subject to such conditions as may be prescribed:
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12.
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58(1): Refusal
of registration and appeal against refusal
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If a private company limited by
shares refuses, whether
in pursuance of any power of the company under its articles or
otherwise, to register the transfer of, or the transmission by operation of
law of the right to, any securities or interest of a member in the company,
it shall within a period of thirty days from the date on which the instrument
of transfer, or the intimation of such transmission, as the case may be, was
delivered to the company, send notice of the refusal to the transferor and
the transferee or to the person giving intimation of such transmission, as
the case may be, giving reasons for such refusal.
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13.
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61(1): Power
of Limited company to
alter its share capital.
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A limited company having a
share capital may, if so
authorised by its articles, alter its memorandum in its general meeting
to:-
(a) increase its authorised
share capital by such amount as it thinks expedient;
(b) consolidate and divide all
or any of its share capital into shares of a larger amount than its existing
shares:
Provided that no consolidation
and division which results in changes in the voting percentage of
shareholders shall take effect unless it is approved by the Tribunal on an
application made in the prescribed manner;
(c) convert all or any of its
fully paid-up shares into stock, and reconvert that stock into fully paid-up
shares of any denomination;
(d) sub-divide its shares, or
any of them, into shares of smaller amount than is fixed by the memorandum,
so, however, that in the sub-division the proportion between the amount paid
and the amount, if any, unpaid on each reduced share shall be the same as it
was in the case of the share from which the reduced share is derived;
(e) cancel shares which, at the
date of the passing of the resolution in that behalf, have not been taken or
agreed to be taken by any person, and diminish the amount of its share
capital by the amount of the shares so cancelled.
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14.
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62(1)(ii): Further
issue of share capital
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(ii) unless the articles of the company
otherwise provide, the offer aforesaid shall be deemed to include a
right exercisable by the person concerned to renounce the shares offered to
him or any of them in favour of any other person; and the notice referred to
in clause (i) shall contain a statement of this right;
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15.
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63(2)(a): Issue of bonus shares.
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No company shall capitalise its
profits or reserves for the purpose of issuing fully paid-up bonus shares
under sub-section (1), unless—
(a) it is authorised by its articles;
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16.
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68(2)(a): Power of company to
purchase its own securities.
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No company shall purchase its
own shares or other specified securities under sub-section (1), unless—
(a) the buy-back is authorised
by its articles;
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17.
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88(4): Register
of
members, etc.
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A company may, if so authorised by its
articles, keep in any country outside India, in such manner as may be
prescribed, a part of the register referred to in sub-section (1), called
“foreign register” containing the names and particulars of the members,
debenture holders, other security holders or beneficial owners residing
outside India.
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18.
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103(1): Quorum
for meetings
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Unless the articles of the company provide for a larger
number,— (a) in case of a public company,— (i) five members personally
present if the number of members as on the date of meeting is not more than
one thousand; (ii) fifteen members personally present if the number of
members as on the date of meeting is more than one thousand but up to five
thousand; (iii) thirty members personally present if the number of members as
on the date of the meeting exceeds five thousand; (b) in the case of a
private company, two members personally present, shall be the quorum for a
meeting of the company.
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19.
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104(1): Chairman
of meetings
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Unless the articles of the company
otherwise provide, the members personally present at the meeting shall
elect one of themselves to be the Chairman thereof on a show of hands
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20.
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105: Proxies
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(1):Any member of a company
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:
Provided further that, unless the articles of a
company otherwise provide, this subsection shall not apply in the case
of a company not having a share capital:
(2):In every notice calling a
meeting of a company which has a share capital, or the articles of which provide for voting by
proxy at the meeting, there shall appear with reasonable prominence a
statement that a member entitled to attend and vote is entitled to appoint a
proxy, or, where that is allowed, one or more proxies, to attend and vote
instead of himself, and that a proxy need not be a member
(4) Any provision contained in the articles of a company
which specifies or requires a longer period than forty-eight hours
before a meeting of the company, for depositing with the company or any other
person any instrument appointing a proxy or any other document necessary to
show the validity or otherwise relating to the appointment of a proxy in
order that the appointment may be effective at such meeting, shall have
effect as if a period of forty-eight hours had been specified in or required
by such provision for such deposit
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21.
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106: Restriction
on voting rights
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Notwithstanding anything
contained in this Act, the
articles of a company may provide that no member shall exercise any
voting right in respect of any shares registered in his name on which any
calls or other sums presently payable by him have not been paid, or in regard
to which the company has exercised any right of lien.
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22.
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115: Resolutions
requiring special notice
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Where, by any provision
contained in this Act or
in the articles of a company, special notice is required of any
resolution, notice of the intention to move such resolution shall be given to
the company by such number of members holding not less than one per cent. of
total voting power or holding shares on which such aggregate sum not
exceeding five lakh rupees, as may be prescribed, has been paid-up and the
company shall give its members notice of the resolution in such manner as may
be prescribed
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23.
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119(b): Inspection
of minute-books of general meeting
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be open, during business hours,
to the inspection by any member without charge, subject to such reasonable restrictions
as the company may, by its articles or in general meeting, impose, so,
however, that not less than two hours in each business day are allowed for
inspection
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24.
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152(6): Appointment of
directors
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(a):Unless the articles provide for the
retirement of all directors at every annual general meeting, not less than
two-thirds of the total number of directors of a public company shall— (i) be
persons whose period of office is liable to determination by retirement of
directors by rotation; and (ii) save as otherwise expressly provided in this
Act, be appointed by the company in general meeting
(b) The remaining directors in
the case of any such company shall, in default of, and subject to any regulations in
the articles of the company, also be appointed by the company in
general meeting.
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25.
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161: Appointment
of additional director, alternate director and nominee director
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(1):The articles of a company may confer on its
Board of Directors the power to appoint any person, other than a person who
fails to get appointed as a director in a general meeting, as an additional
director at any time who shall hold office up to the date of the next annual
general meeting or the last date on which the annual general meeting should
have been held, whichever is earlier
(2):The Board of Directors of a
company may, if so authorised by its articles or by a resolution passed by
the company in general meeting, appoint a person, not being a person holding
any alternate directorship for any other director in the company, to act as
an alternate director for a director during his absence for a period of not
less than three months from India:
(3) Subject to the articles of a company, the
Board may appoint any person as a director nominated by any institution in
pursuance of the provisions of any law for the time being in force or of any
agreement or by the Central Government or the State Government by virtue of
its shareholding in a Government company
4) In the case of a public
company, if the office of any director appointed by the company in general
meeting is vacated before his term of office expires in the normal course,
the resulting casual vacancy may, in default of and subject to any regulations in the articles of
the company, be filled by the Board of Directors at a meeting of the
Board
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26.
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163: Option
to adopt principle of proportional representation for appointment of
directors
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Notwithstanding anything
contained in this Act, the
articles of a company may provide for the appointment of not less than
two-thirds of the total number of the directors of a company in accordance
with the principle of proportional representation, whether by the single
transferable vote or by a system of cumulative voting or otherwise and such
appointments may be made once in every three years and casual vacancies of
such directors shall be filled as provided in sub-section (4) of section 161.
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27.
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164(3): Disqualifications
for appointment of director
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A private company may by its articles provide for
any disqualifications for appointment as a director in addition to those
specified in sub-sections (1) and (2)
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28.
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167(4): Vacation
of office of director
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A private company may, by its articles, provide
any other ground for the vacation of the office of a director in addition to
those specified in sub-section (1)
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29.
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174(4): Quorum
for meetings of Board
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Where a meeting of the Board
could not be held for want of quorum, then, unless the articles of the company otherwise provide,
the meeting shall automatically stand adjourned to the same day at the same
time and place in the next week or if that day is a national holiday, till
the next succeeding day, which is not a national holiday, at the same time
and place
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30.
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176: Defects
in appointment of directors not to invalidate actions taken
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No act done by a person as a
director shall be deemed to be invalid, notwithstanding that it was
subsequently noticed that his appointment was invalid by reason of any defect
or disqualification or had terminated by virtue of any provision contained in this Act or in
the articles of the company
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31.
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179: Powers
of Board
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The Board of Directors of a
company shall be entitled to exercise all such powers, and to do all such
acts and things, as the company is authorised to exercise and do: Provided
that in exercising such power or doing such act or thing, the Board shall be subject to
the provisions contained in that behalf in this Act, or in the memorandum or
articles, or in any regulations not inconsistent therewith and duly
made thereunder, including regulations made by the company in general meeting
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32.
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187:Investments of company to
be held in its own name
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Where in pursuance of clause
(d) of sub-section (2), any shares or securities in which investments have
been made by a company are not held by it in its own name, the company shall
maintain a register which shall contain such particulars as may be prescribed
and such register shall be open to inspection by any member or
debenture-holder of the company without any charge during business hours subject to such reasonable
restrictions as the company may by its articles or in general meeting impose
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33.
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197(4): Overall
maximum managerial remuneration and managerial remuneration in case of
absence or inadequacy of profits
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(4) The
remuneration payable to the directors of a company, including any managing or
whole-time director or manager, shall be determined, in accordance with and subject to the provisions
of this section, either by the articles of the company, or by a
resolution or, if the articles so require, by a special resolution, passed by
the company in general meeting and the remuneration payable to a director
determined aforesaid shall be inclusive of the remuneration payable to him
for the services rendered by him in any other capacity
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34.
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203: Appointment
of key managerial personnel
(Proviso)
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Provided that an individual
shall not be appointed or reappointed as the chairperson of the company, in pursuance of the articles
of the company, as well as the managing director or Chief Executive
Officer of the company at the same time after the date of commencement of
this Act unless,— (a) the articles of such a company provide otherwise; or
(b) the company does not carry multiple businesses
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35.
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286(c):Obligations of directors
and managers
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36.
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304: Circumstances in which
company may be wound up voluntarily
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A company may be wound up
voluntarily,— (a) if the company in general meeting passes a resolution
requiring the company to be wound up voluntarily as a result of the expiry of
the period for its duration, if any, fixed by its articles or on the occurrence of
any event in respect of which the articles provide that the company should be
dissolved;
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37.
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320: Distribution
of property of company
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Subject to the provisions of
this Act as to overriding preferential payments under section 326, the assets
of a company shall, on its winding up, be applied in satisfaction of its
liabilities pari passu and, subject to such application, shall, unless the articles otherwise
provide, be distributed among the members according to their rights
and interests in the company
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[1] http://www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf,
Official MCA website, Last visited 04/05/2015
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