Section 293-Restrictions on powers
of the Board
The section imposes
restrictions on the following powers of the Board and in such cases, a prior
approval of the company in a General Meeting is essential:
(a) Sell, lease or otherwise
dispose of either partial or whole of the undertaking of a company.
(b) Invest otherwise in
trust securities the amount of compensation received by the company in respect
of the compulsory acquisition of property/under- taking.
(c) Borrow money, except
temporary loans (obtained from the company's bankers in the ordinary course of
business) in excess of the aggregate of the paid-up capital of the
company and its free-reserves.
(d) Contribute to charitable
or other funds not directly relating to tile business of the company or the
welfare of the company, in any financial year exceeding fifty thousand rupees
or five per cent of its average net profits during the three financial years
immediately preceding, whichever is greater.
Explanation I to section 293
provides that every resolution passed by the company in General Meeting in
relation to the exercise of the power referred to under item (c) or in item (d)
shall specify the total amount up to which moneys may be borrowed by the Board
of Directors under item (c) or the amount of charity that the Board may make
under item (d) above.
Any of the above proposal is
first initiated by issuing a notice for convening a General Meeting to place
before the members the relevant proposals.
The said provision is only applicable to public companies and private companies which are subsidiaries of public companies.
Removal of Director by Shareholder
To
The Secretary, Dated
XYZ Limited.
Dear Sir,
Pursuant to the provisions
contained in section 284 of the Companies Act, 1956, I hereby give you notice
of my intention to propose the under noted
resolution as an ordinary resolution at the ___General Meeting of the
Company to be held at ___on___ at___ hours.
To consider and if thought
fit to pass the following resolution:
"RESOLVED that pursuant
to the provisions of Section 284 of the Companies Act, 1956 Shri ___be and is
hereby removed from the office of Director of the Company.
RESOLVED FURTHER that Shri
___be and is hereby appointed a Director of the Company in place of Shri ___to
hold
office for the unexpired
period of time due to be held by the removed Director".
Yours faithfully,
Resolution for Removal of Director
(Another format)
NOTICE
To
Dear Sir,
We write to inform you that
the Company has received a notice from a shareholder of the Company of a
resolution for your removal from the office of director .The said resolution is
intended to be moved at the ____General Meeting to be held at
___on___2003___at___hours.
A copy of the aforesaid
resolution is enclosed for your persual. We draw your attention to the
provisions contained in sub-section (3) of section 294 of the Companies
Act, 1956 pursuant to which you are entitled to be heard on the resolution at
the meeting. Further in terms of sub-section (4) thereof you can make a
representation in writing to the Company for notification to the Members of the
Company.
We also enclose the agenda
of the Meeting with a request to attend the Meeting.
Thanking you
Yours faithfully
For XYZ Limited
Secretary
Place:
Dated:
Notice of Board Meeting by Publication
The Meeting of the Board of Directors of XYZ Limited will be held on Wednesday, the 30th October, 2003 at 15, Vishal Bhavan, Nehru Place, New Delhi- 1100 19 to consider the quarterly results of the Company as on 30th September, 2003.
For XYZ Limited
Company Secretary
Place:
Dated:
General Meeting under section 293
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on ___the___2003
at___ a.m./ p.m. to consider and, if thought fit, to pass with or without
modification the following resolutions as Ordinary Resolutions:
"RESOLVED that in
compliance with the provisions of section 293(l)(a) of the Companies Act, 1956,
the consent of the Company be and is hereby accorded to tile Board of Directors
of the company for mortgaging in favour of ____Bank (hereinafter referred to as
'the Bank') all the immovable properties of the company including its leasehold
properties both present and future and all other fixed assets both present and
future of the Company as and by way of first charge by deposit of title deeds
relating to the company's immovable properties, in mouza Chirkunda, district
Dhanbad, in the State of Bihar, to secure the repayment of the term loan, the
cash credit and other facilities being enjoyed by the company from the Bank up
to a maximum limit of Rs. 4.50 crores together with interest, cost, charges,
expenses and other moneys payable by the company to the Bank in relation
thereto.
RESOLVED FURTHER that the
Board of Directors of the Company be and is hereby authorised to do and execute
all such acts, deeds, matters and things as may be necessary to implement the
aforesaid resolution."
BY THE ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the .... 2003
NOTES: 1 .A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement pursuant to section 173(2) of the Companies Act, 1956, in respect of
the-special business set out above is annexed hereto.
3.The Special Resolution
requires consent of shareholders through postal ballot.
Explanatory Statement
Pursuant to section 173(2) of the Act
Your company at present
enjoys the following facilities from the ____Bank .___Branch, Nagpur 440 012:
(a) Cash credit facility up
to the limit of Rs. 400 lakhs.
(b) Bill discounting
facility up to a limit of Rs. 100 lakhs.
(c) Facilities for opening
Letters of Credit.
(d)Issue of guarantees in
favour of the company's customers of Rs. 100 lakhs; secured by first charge on
the company's all types of movable properties including book debt.
In need of further loan to
finance the new project of the company, the company approached the bank for a
medium term loan for an aggregate amount of Rs. 1150 lakhs repayable in seven
years time with moratorium for the first two years. The bank agreed in
principle to this request of your Directors with a condition that the present
securities covering the existing facilities be combined as a package under
overall facilities including proposed term loan to be secured by ail equitable
mortgage of all the immovable properties of the company including its leasehold
properties both present and future by way of first charge in favour of the
bank. Your Directors consider that the creation of equitable mortgage on the
fixed assets of the company which form the undertakings of the company attracts
the provisions of section 293(l)(a) of the Companies Act, 1956, where the Board
is restricted to sell, lease otherwise dispose of the whole or substantially
the whole, of the undertaking of the company without according the consent of
the members of the company in a General Meeting. 'Sell, lease or otherwise
dispose of in effect covers all modes of' disposal of property such as creation
of equitable mortgage in favour of the bank. The proposal contained in the
above Ordinary Resolution is placed before you for your acceptance in the
interest of the company. None of your Directors are directly or indirectly
interested in the aforesaid proposal.
Provisions restricting the powers of the
Board of Directors to sell,
lease or otherwise
dispose of the undertaking of the company (S. 293)
Section 293(l)(a) is a very widely used provision and it is vague also in interpretation of the words otherwise dispose of in the aforesaid sub-section. Number of divergent clarification of the term had been forwarded by the Department of Company Affairs from time to time without throwing much light on the exact nature of the formalities to be carried on but it seems that 'otherwise dispose of' cover all other modes of disposing property, such as, transfer by mortgage, etc. The financial institutions/ banks have, however, adopted a definite line that any time a company if allowed loan on the security or mortgage of immovable property either by way of equitable mortgage otherwise, approval of the members authorising the Board of Directors or any particular Directors to carry on the formalities and completion of the process is an essential formality. The functions of the financial institutions for allowing term lending loans to the commercial companies have at present increased substantially. Listed companies are required to pass the ordinary resolution under section 2930)(a) by postal ballot" as per Rule 4(f) of the Companies (Passing of the Resolutions by Postal Ballot) Rules, 2001.
Notice of General Meeting under section 293
(Another format)
RUSHABH
MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 , on__the___2003 at___
a.m./p.m. to consider and, if thought fit, to pass with or without
modification, the following resolutions as Ordinary Resolutions:
"RESOLVED that the
consent of the Company be and is hereby accorded in terms of section 293(l)(a)
and other provisions, if any, of the Companies Act, 1956, to mortgaging and/or
charging by the Board of Directors of the Company of all or any part of the
immovable properties of the Company where so ever situate both present and future
of every nature and kind whatsoever and/or creating a floating charge on all or
any of the 'Immovable properties of the company and the whole of the
undertaking of the Company together with power to take over the management of
the business and concern of the Company in certain events, to or in favour of
all or any of:
(b)General Insurance
Corporation of India (G.I.C.) and its subsidiaries;
(c)Trustees for the
debenture-holders in respect of the debentures to be privately placed
with the Unit Trust of India (U.T.I.);in order to secure
1. (a) Rupee term loans not
exceeding Rs. 150 lakhs (Rupees one hundred and fifty lakhs) lent and
advanced/agreed to be lent and advanced by the L.I.C. to the company;
(b)Rupee term loans not
exceeding Rs. 150 lakhs (Rupees one hundred and fifty lakhs) lent and
advanced/agreed to be lent and advanced by the G.I.C. and its subsidiaries to
the company;
(c)The issue of privately
placed debentures not exceeding Rs. 150 lakhs (Rupees one hundred and fifty
lakhs) with U.T.I. and all amounts payable by the company in respect of the
said debentures.
2.The interest at the
respective agreed rates, compound / additional interest, commitment charges,
premium on prepayment or on redemption, costs, charges, expenses and all other
moneys payable by the company to L.I.C., G.I.C. and its subsidiaries, and
U.T.I. in terms of their respective letters of sanction/memorandum of terms and
conditions, entered into/to be entered into by the company in respect of the
said term loans/debentures.
"RESOLVED FURTHER that
the Board of Directors of the Company be and is hereby authorised to finalise
with L.I.C., G.I.C. and its subsidiaries and the U.T.I. the documents for
creating the aforesaid mortgage and/or charges and to do all such acts and
things as may be necessary for giving effect to the above resolution."
BY ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the __2003
NOTES: 1.A member entitled
to attend and vote at the meeting, is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
3.The Ordinary Resolution
requires consent of shareholders through postal ballot.
Explanatory Statement pursuant to section 173(2) of
the Act
To meet the capital
requirements of the company's expansion of manufacturing line, the company
approached to some public financial institutions, namely, the Life Insurance
Corporation of India (L.I.C.), the General Insurance Corporation of India
(G.I.C.) and its subsidiaries, that is, the New India Insurance Company
Limited, the Oriental Fire & General Insurance Company Limited, the United
India Fire & General Insurance Company Limited and the National Insurance
(the subsidiaries of the G.I.C.), and the Unit Trust of India (U.T.I.). The
aforesaid institutions have agreed to finance individually Rs. 150 lakhs each,
against security of creation of first charge by way of registered mortgage on
the company's entire fixed assets either present or future that may be acquired
either out of loan amount from the aforesaid institutions or otherwise, with
the exception that the loan of Rs. 150 lakhs from the U.T.I shall be secured by
mortgaged debentures to be privately placed which shall be secured by the first
charge on the entire fixed assets of the company pari passu with the charge
created by mortgage in favour of the other institutions named hereinabove. It
has been agreed in principle by the aforesaid institutions for the exclusive
issue of 15,000 debentures of Rs. 100 each to the U.T.I. carrying a rate of
13.5 per cent interest repayable not before ___2003 but repayable at the option
of the company after such date, at such rate as may be decided upon by the
Board of Directors of the company. Both the issue and the redemptions shall be
at par. The issue of debentures will be secured by the first charge on the
fixed assets of the company pari passu with the other term lending
institutions. M/s. ABC Private Limited, who has agreed to act as the trustee
for the debenture-holders, is acceptable to the U.T.I. term loan agreements/debenture
trust deed covering the aforesaid proposals are to be executed by the company
but in view of the restrictions imposed on the Board of Directors pursuant to
section 293(l)(a) this is possible with the accord of the members in a General
Meeting.
The drafts of the documents
are available for inspection by members at the registered office of the company
during usual business hours of the company on any working days.
None of the Directors is
interested in the aforesaid proposal and recommends your acceptance thereof.
Section 293(l)(b)-Restriction on the
powers of the Board to remit or
give time for
repayment of any debt
Clause (b) of sub-section
(1) of section 293 puts a restriction on the powers of the Board to remit any
debt due by a Director or extend the repayment schedule of any debt due from
any Director. This may be done with the consent of a company in General
Meeting.
§ 232
Meeting to allow extension of time for repayment of debt
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on___the___2003 at___
a.m./p.m. to consider and, if thought fit, to pass with or without
modification, the following resolution as an Ordinary Resolution:
"RESOLVED that pursuant
to the provisions of section 293(l)(b) of the Companies Act, 1956, the Board of
Directors of the Company be and is hereby authorised to grant extension of time
for a further period up to___2003, that is, the end of the financial year of
the Company, for the repayment of the debt due by Mr ____a Director of the
company to the aggregate amount of Rs. 4,000/- ."
BY ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the .... 2003
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement
pursuant to section 173(2) of the Act
Mr ____a Whole-time
Director of the company, was advanced Rs. 10,000 in travellers cheques in connection with a business visit to
Europe and continent during ____2003 Mr .___on return from the foreign tour
rendered accounts of his expenses with supporting receipts and vouchers (where
available) aggregating to an amount of Rs. 6,000 with a request in writing that
he be allowed time to repay the balance of Rs.4,000 up to the 2003 Your Directors consider that the
refundable amount of Rs. 4,000 by Mr. ___ amounts
to debt due by a Director, and the request for the extension of time attracts
the restrictive provisions of section 293(l)(b) of the Companies Act,
1956, although the initial advance of
Rs. 10,000t made to Mr ___ was within the bounds of ordinary business to be
carried on by the management of the company. Your Directors are also of opinion
that since the nature of the transaction has changed from an advance for
carrying out the official duty to a loan repayable by a Director, it would
attract the provisions of section 295 of the Companies Act, 1956 and initiated
submission of an application for obtaining the approval of the Central
Government as required under section 295 of the Act.
None of your Directors,
except Mr___ is interested in the
resolution and your Directors recommend your acceptance thereof.
Section 293(l)(c)-Restriction on the
powers of the Board to invest
the compensation
money
Without the consent of the
company, having been obtained in General Meeting, the Board of Directors can
not invest any money received as compensation by the company in respect of the
compulsory acquisition of any undertaking of the company or of any premises or
properties used for any such undertaking. The word 'undertaking' is used to
indicate a business unit of a company or a productive unit in which a company
may be engaged in as gainful occupation. But sale of single piece of machinery
or furniture or unconnected property will not amount to an undertaking.
The Board of Directors,
however, may invest such compensation money in trust securities without
obtaining any approval of the company.
General Meeting for allowing investment of compensation
money to the Board
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that an Extraordinary General
Meeting of the Company will be held at the registered office of the Company at
301 Pitru Ashirwad Anand 388001 ,on___the___2003 at___ a.m./p.m. to consider
and, if thought fit, to pass with or without modification the following
resolution as an Ordinary Resolution:
"RESOLVED that the
authority be and is hereby accorded to the Board of Directors of the Company to
invest Rs. 60,00,000/- (Rupees sixty lakhs) being the amount of
compensation received by the company in respect of the company's manufacturing
undertaking inclusive of land, factory, building and machinery situated at
Imphal in the State of Manipur, in acquiring any equity shares of a Company
considered by the Board of Directors to be sound and yielding regular income
there from."
BY
ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the ____2003
NOTES: 1. A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
2. The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement
pursuant to section 173(2) of the Act
As you are aware, your company had a lime stone processing factory situated near Imphal in the State of Manipur, eastern India. Under an ordinance promulgated on 30th January, 1974, the said factory, including land, building, sheds and machineries (including the mining lease) have been acquired by the Central Government for a compensation of Rs. 60,00,000 payable by the Cement Corporation of India, a corporation formed and organised by the Central Government. The amount of Rs. 60,00,000 being the compensation for the taking over of the aforesaid undertaking has been received, and your Directors are keen to invest this amount in acquiring equity shares in M/s. PQR & Company Limited, a company based in U.P. and manufacturing miscellaneous pharmaceutical preparation for which there exists country wide demand. Growth rate of M/s. PQR & Company Limited is fairly good and payment of dividend from year to year is also consistent. The equity shares of M/s. PQR & Company Limited are quoted in Delhi and Bombay Stock Exchanges and your Directors hope that entire Rs. 60,00,000/- could be utilised gradually for acquiring such shares from the market for a reasonable price. Such investment will be within the limit provided under section 372A and special resolution is to be passed separately under that section.
Investment of compensation
money of the aforesaid nature attracts the restrictive provisions of section
293(l)(c) pursuant to which consent of the members at a General Meeting is
essential.
None of the Directors,
directly or indirectly, is concerned or interested in the above resolution and
recommends your adoption thereof in the best interest of the company.
Clause (d) of sub-section
(1) of section 293 of the Companies Act, 1956, puts an embargo on the powers of
the Directors to borrow moneys in excess of the borrowings aggregating to paid-up
capital of the company and its free reserves, that is, reserves not set apart
for any specific purpose. The borrowing used in this section should be
exclusive of temporary loans obtained from the bankers of the company in the
ordinary course of business, that is, borrowing from the bankers of the company
on cash credit/over draft account repayable on demand should be out of the ambit
of the restrictive provisions of section 293(l)(d).
It is not necessary for the
Board to approach every time to the members for their approval to borrow in
excess of the aggregate of the paid-up capital and free reserves. A
resolution passed by a company in a General Meeting in relation to the exercise
of power under this section shall specify the total amount up to which moneys
may be borrowed by the Directors, that is, the company shall fix the maximum
ceiling of borrowing for the Directors, to act within such limit, If in any
future time, this ceiling is exceeded, the company in a subsequent General
Meeting may approve further higher ceiling of borrowing to meet the situation.
The acceptance by a banking company, in the ordinary course of its business, of
deposits of money from the public, repayable on demand or otherwise, and
withdraw able by cheque, draft, order or otherwise, shall not be deemed to be a
borrowing of money by the banking company within the meaning of clause (d) of
sub-section (1) of section 293.
Compliance Certificate.-Companies
having paid-up share capital of less than Rs.2 Crores but equal to or
more than Rs. 10 lakhs are required to obtain a Compliance Certificate from a
secretary in whole-time practice to be filed with the Registrar of
Companies mentioning therein inter alia that the amount borrowed by the company
from directors, members, public financial institutions, banks and others during
the financial year is within the borrowing limits of the company and that
necessary resolutions as per section 293(l)(d) of the Act have been passed in
duly convened annual/extraordinary general meeting as per paragraph 24 of the
Form of Compliance Certificate appended to the Companies (Compliance
Certificate) Rules, 2001 prescribed under section 383-A(l) proviso.
Borrowing in excess of paid-up Capital and free reserves
of the Company
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on___the___2003 at___
a.m./p.m. to consider and, if thought fit, to pass with or without modification
the following resolutions as an Ordinary Resolution:
"RESOLVED that in
supersession of the resolution passed at the Extraordinary General Meeting of
the Company held on the ............. 2000...., consent be and is hereby
accorded to the Board of Directors of the Company pursuant to section 293(l)(d)
of the Companies Act, 1956, for borrowing from time to time any sum or sums of
money which together with the money already borrowed by the company (apart from
temporary loans obtained from the bankers of the Company in the ordinary
course of business) shall not exceed in the aggregate at any one time Rs. 500
lakhs irrespective of the fact that such aggregate amount of borrowing
outstanding at any one time may exceed the aggregate for the time being of the
paid-up capital of the Company and its free reserves, that is to say,
reserves not set apart for any specific purpose."
BY ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the ___2003___
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 17-3(2)
of the Act
Pursuant to the provisions
of clause (d) of sub-section (1) of section 293 of the Companies Act,
1956, the Board of Directors cannot borrow more than the aggregate amount of
the paid-up capital of the company and its free reserves at any one time
except with the consent of the shareholders of the company in a General
Meeting. At the Extraordinary
General Meeting of the
company held on the 2003 consent of the
members had been obtained for the
Directors to borrow up to a maximum amount of Rs. 400 lakhs, irrespective of
the fact that such amount together with the moneys already borrowed by the
company (apart from temporary loans obtained from the bankers of the company in
the ordinary course of business) exceeded the aggregate of the paid-up
capital and the free reserves of the company as on that date. The expansion
programme of the company is being carried out in full swing and it is expected
that the ceiling fixed by the members of the company for borrowing, that is Rs.
400 lakhs, will be exceeded after acceptance of the foreign currency loans
sanctioned by the Industrial Credit and Investment Corporation of India Ltd.,
the rupee equivalent of which would be about Rs. 60 lakhs and, there fore,
your Directors place before you the proposal to increase the maximum borrowing
limit to Rs. 500 lakhs.
None of the Directors of
your company is interested, either directly or indirectly, in the said proposal
and recommends your approval thereof in the interest of the company.
Section 293(l)(e)-Restriction on the
powers of the Board to
contribute to
charitable funds
Clause (e) of sub-section (1) of section 293 of the Companies Act, 1956, puts restrictions on the powers of the Board of Directors of a public company and its subsidiaries to contribute to charitable and other funds not directly relating to the business of the company or the welfare of its employees, in excess of Rs. 50,000/- or five per cent of its average net profits during the three financial years immediately preceding, whichever is greater.
Any donation in excess of the above ceiling is out
of the hands of the Directors and shall not be acted upon except with the
consent of such public company in General Meeting
Contribution to charitable funds in excess of the limits
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on ___the___2003
at___ a.m./p.m. to consider and, if thought fit, to pass with or without
modification the following resolution as an Ordinary Resolution:
"RESOLVED that the consent of the Company be and is hereby accorded to the Board of Directors contributing and/or subscribing from time to time to any national, charitable, benevolent, public or general and other funds not directly relating to the business of the company or the welfare of its employees up to an aggregate amount of Rs. 3,00,000/- (Rupees three lakhs only) in any financial year as may be considered proper by the Board of Directors notwithstanding that such amount in any financial year may exceed Rs. 50,000/- or five per cent of the average net profits of the company, as determined in accordance with the provisions of sections 349 and 350 of the Companies Act, 1956, during the three financial years immediately preceding, whichever is greater."
BY THE ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the _____2003
NOTES: 1 .A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173(2) of
the Act
Your company is authorised,
by its Articles of Association, to subscribe to charitable and other funds not
directly relating to the business, the consent sought by the proposed
resolution is pursuant to section 293(l )(e) of the Companies Act, 1956.
None of the Directors of your company is interested, either directly or indirectly in the said resolution and your Directors recommend the adoption of the proposed resolution in the national/public interest.
Section 294-Prohibition regarding
appointment/Re-appointment of
sole selling
agents
Subsequent to the Companies
(Amendment) Act, 1960, came into operation, no company can appoint a sole
selling agent for any area except with the approval of the company in a General
Meeting for a term exceeding five years at a time. If at any time, the Board of
Directors of a company appoints a sole selling agent for any area after the
commencement of the aforesaid Amendment Act, such appointment shall not be
valid if it is not approved by the company in the first General Meeting held
after the date on which the appointment is made but such validity shall be
effective from the date of that General Meeting.
Compliance Certificate.-Companies having paid-up share capital of less than Rs. 2 Crores but equal to or more than Rs. 10 lakhs are required to obtain a Compliance Certificate from a secretary in whole-time practice to be filed with the Registrar of Companies mentioning therein inter alia that the appointment of sole-selling agents was made in compliance with the provisions of the Act as per paragraph 16 of the Form of Compliance Certificate appended to the Companies (Compliance Certificate) Rules, 2001 prescribed under section 383-A(l) proviso.
Re-appointment of sole selling agents
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that an Extraordinary General Meeting of the Company will be held at the registered office of the Company at 301 Pitru Ashirwad Anand 388001 , on ___the___2003 at___ a.m/p.m. to consider and, if thought fit, to pass with or without modification the following resolution as an Ordinary Resolution:
"RESOLVED that pursuant
to the provisions of section 294 and other applicable provisions of the
Companies Act, 1956, approval be and is hereby accorded to the re-appointment
of M/s. BCD & Company Ltd., as the sole selling agents of the Company for
the entire States of Haryana and Punjab for a period of five years with effect
from ................ 2003 on terms and conditions contained in the draft
agreement made between the Company on one side and M/s. BCD & Company
Limited on the other and submitted to this meeting having been identified and
authenticated under signature of the Chairman hereof".
BY
ORDER OF THE BOARD
(X
Y Z)
Secretary.
Dated the .... 2003
NOTES: 1. A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanation Statement Pursuant to section 173(2) of
the Act.
M/s. BCD & Company Ltd.
were proposed and accepted by your Board of Directors for re-appointment
as the sole selling agents of your company's products within the territory
covered by the present States of Haryana and Punjab. M/s. BCD & Company
Limited were in the similar trade in these areas for quite long time and have
thorough experience of marketing of the products manufactured by your company.
Being in the trade with extremely good reputation, they command a superb market
reputation and your Board of Directors feels that such re-appointment
will be to the best interest of your company. Your Board made re-appointment
of the said M/s. BCD & Company Ltd. With effect from the ___2003 and this
being the first General Meeting after such appointment, your Board of
Directors places before you for your approval the appointment of the said sole
selling agents in terms of sub-section (2) of section 294 of the
Companies
Act, 1956, recommending
continuance of such appointment for a period of five years effective from the
___2003 The following are the salient terms and conditions of the proposed sole
selling agreement with M/s. BCD & Company Limited covering areas as
aforesaid:
(a) The goods will be sent
to Chandigarh for M/s. BCD & Company Ltd. on consignment basis. The
proposed sole selling agents shall then take required action to distribute the
materials either to their branches or to their associates for ultimate
disposal, the transport and handling cost of which will be borne by the
proposed sole selling agents.
(b)Your company shall appoint two/three salesmen for the area who will be reporting to M/s. BCD & Company Ltd. and will be responsible to them. Salary, travelling allowance and other out-of-pocket expenses will be borne by your company against expenses statements submitted by such salesmen being approved and recommended by the said M/s. BCD & Company Ltd. The proposed sole selling agents will also appoint matching number of salesmen to work in such section of the area decided upon by the said sole selling agents,
(c) M/s. BCD & Company
Ltd. will be responsible to carry out such advertisement campaign, propaganda
for the boosting up of the products of the company as they consider expedient.
(d) Besides any amount of
commission or other payments, the company shall meet expenses to be incurred by
the proposed sole selling agents at a fixed rate of Rs. 5000 per month
including maintenance of office, selling depots or go downs as may be
considered necessary by the said M/s. BCD & Company Ltd.
(e)The company shall pay an
amount equivalent to ten per cent of the invoiced value of the sales made in a
quarter by the proposed sole selling agents provided, however, if in any
quarter the actual sale drops below the aggregate maximum of Rs. 10,00,000-
in the area, a curtailment of 21/2 per cent of the commission payable in that quarter
will be made.
(f)If the proposed sole
selling agents in any year achieve a sale value exceeding Rs. 50,00,000/-
a special commission at the rate of 21/2 per cent on the additional amount over
Rs. 40,00,000/- will be made by the company as special incentive
commission.
Your Board of Directors
feels that maintenance of several offices and depots directly by the company
will be much more costly and the company stands to benefit on the deal from the
point of view of economy.
A copy of the said agreement
may be inspected at the registered office of the company on any of the working
days of the company between the hours beginning from 10.30 a.m. to 2.00 p.m.
None of your Directors is,
directly or indirectly, either concerned or interested in the aforesaid
proposal and recommends your acceptance thereof in the interest of the company.
Provisions of section 294 of
the Companies Act, 1956, relating to appointment of sole selling agents are
also attracted in the case of appointment of distributors for a company if the
distributor's contractual relationship between the parties and the terms and
conditions of their appointment so demand
Appointment of sole selling
agents made by the Board will be void if such appointment is made without the
condition that the appointment shall cease to be valid if it is not approved by
the company in the next General Meeting of the concerned company. Department of
Company Affairs also clarifies that such appointment of sole selling agents
will continue to be void ab initio even if it is approved by the General
Meeting of the company. An appointment which is invalid from the beginning
cannot be treated as valid even after the General Meeting approves it .
Section 294AA(4)-Appointment of
buying agents
Sub-section (4) of
section 294AA extended the provisions of the sub-sections (5) (6) and (7)
of section 294 to be applicable to the appointment of the sole buying or
purchasing agents of a company. Sub-sections (5), (6) and (7) of section
294 mainly deal with the power of the Central Government for intervention in
the process of appointment or continuance of the sole selling agency if the
Central Government feels that there are good reasons for intervention and
require the company to furnish any information in regard, to such appointment
including the power to appoint a suitable person to investigate and report on
the terms and conditions of appointment of the sole selling agent. Having
collected reports and allied information on such intervention if the Central
Government is of' the opinion that the terms and conditions of appointment of
the sole buying/purchasing agents are prejudicial to the interest of the
company, the Central Government may, by order make such variations in such
terms, otherwise approved by the company in a General Meeting to make them no
longer prejudicial to the interests of the company. Moreover previous approval
of the Central Government is necessary for appointment of sole buying or
purchasing agent if it has substantial interest in the company concerned. The
application in this case should be made in Form ll of the Companies
(Appointment of Sole Agents) Rules, 1975.
Appointment of a sole buying
agent, it will appear, as such is not necessary to be done by the company in
General Meeting, unless the company concerned has a paid up share capital of
Rs. 50 lakhs or more in which case such appointment must be made by a Special
Resolution and approval of the Central Government . However, because of the
restrictive provisions and power reserved in the hands of the Central
Government to verify the suitability or otherwise of such appointment, it is
considered that the appointment of buying agents also be made with the approval
of the company in a General Meeting. A number of Indian companies are having
sole buying agents in foreign countries also.
Appointment of an overseas buying agent
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on___the___2003 at___
a.m/ p.m. to consider and, if thought fit, to pass with or without
modification, the following resolution as an Ordinary Resolution :
"RESOLVED that pursuant
to the provisions of section 294AA and any other applicable provisions of the
Companies Act, 1956, and subject to the approval of the Central Government and
of the Reserve Bank of India and subject to such modifications and alterations
as may be found necessary by any concerned authority the company hereby accords
its approval to the appointment of M/s. Simplex Trading Inc. of 54th Street,
New Work, N.Y., U.S.A. as the sole buying agent in the U.S.A. and any of the
European countries for the plant, machinery or equipment including spares that
may be required by the Company and asked for as such from time to time on the
terms and conditions contained in a draft appointment letter from the company
to the said M/s. Simplex Trading Inc. of U.S.A. and submitted to this meeting
initialled by the Chairman hereof for the purpose of identification".
BY ORDER OF THE BOARD
(X Y Z)
Dated the .... 2003 Secretary.
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement
pursuant to section 173(2) of the Act
Your company's requirement
of machinery and spares is quite sizable, this apart, the company is embarking
on a fairly Substantial expansion for which requirement of foreign plant and
machinery is also quite high. So far the company had no buying arrangement in
overseas and had to resort to some local indenting house or directly place
order on some foreign manufacturers where the quality and suitability were not
certain. The aforesaid M/s. Simplex Trading Inc. as the sole buying agent in
the U.S.A. and Europe on tile condition that the company will reimburse tile
actual out-of-pocket expenses of tile sole buying agents incurred
by them in the process of the execution of our indent and commission at the
rate of one per cent on the F.O.B value of the goods purchased through the sole
buying agent. Under the Foreign Exchange Regulation Act, special permission of
the Reserve Bank is required for accepting any appointment as agent in India of
any person or company to the trading or commercial transactions of such person
or company. An application has been made to the Reserve Bank of India seeking
approval for the appointment of the said M/s. Simplex Trading Inc., as the sole
overseas buying agent of the company on the above mentioned terms and
conditions.
None of the Directors of
tile company is interested, either directly or indirectly, in the proposal and
your Board of Directors recommends your accord to the proposal in the interest
of the company.
Section 294AA(3)-Prohibition on
appointment of sole selling agents
in certain cases
Section 294AA introduced by the Companies (Amendment) Act, 1974, imposes restriction on the appointment of sole selling agents and reserves the power in the hands of the Central Government either to abolish total the sole selling agency system or to impose such restriction both as to terms and conditions, and period of continuance of the sole selling agreement. Under sub-section (1) Central Government has prohibited appointment of sole selling agents for Cement and Paper for 2 years from 18-9-2000 and for bulk Drug, Drugs and formulation for 3 years from 27-4-2000 and Vanaspati for 2 years from 21-12-2000. Under sub-section (2) of the said section 294AA no company is permitted to appoint any individual firm or body corporate with substantial interest in the company as the sole selling agents of the company unless such appointment has been previously approved by the Central Government.
Pursuant to sub-section
(3) of the said section, a company having a paid-up capital of Rs. 50
lakhs or more cannot appoint a sole selling agent except with the consent of
the company accorded by a special Resolution and the approval of the Central
Government.
The basic constraint imposed under section 294AA is that the Central Government shall select industries where a company may appoint sole selling agent having regard to market demand and availability of the particular product of the company. Pursuant to sub-section (6) of this section, the general body of members may disapprove an earlier appointment of a sole selling agent by an Ordinary Resolution. The disapproval will have effect even though the Central Government may have accorded its approval. The consensus of the members of the company has been conferred by the statute a supreme authority in the matter of appointment of a sole selling agent even to prevail over the decision (approval) of' the Central Government. There is no set guidelines provided by the Central Government as to whether the Central Government's approval for the appointment of sole selling agents under section 294AA(3) will be sought first to be followed by obtaining of the approval of the members at a General Meeting. Usually the Central Government prefers that the approval of the members be secured prior to making an application. The application to be made to the Central Government under sub-sections (2) & (3) of section 294AA must be in Form l of the Companies (Appointment of Sole Agents) Rules 1975.
Appointment of Sole Selling Agent
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on__the___2003 at
___a.m./p.m. to consider and, if thought fit, to pass with or without
modifications, the following resolution as a Special Resolution:
"RESOLVED that pursuant
to the provisions of sub-section (3) of section 294AA and any other
applicable provisions of the Companies Act, 1956, and subject to the approval
of the Central Government, the Company hereby accords its approval to the
appointment of Ms/. BCD & Company Ltd. as the sole selling agent of the
Company's products exclusively in Delhi and Haryana for a period of five years
from the____2003 on terms and conditions as are embodied in a draft agreement
there for and produced in this meeting duly authenticated under the signature
of the Chairman hereof".
BY THE ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the .... 2003
NOTES: 1 .A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173(2) of
the Act.
The appointment of sole
selling agents to deal with the products of a company having a paid-up
share capital of Rupees fifty lakhs or more is regulated by the provisions of
section 294AA(3) of the Companies Act, 1956, added by the Companies (Amendment)
Act, 1974. Your company's paid-up capital being more than fifty lakhs of
rupees attracts the provisions of the aforesaid section so far as it relates to
the appointment of sole selling agents for a particular area. A sole selling
agent for your company can only be appointed with the consent of the company
accorded by a Special Resolution and also with the approval of the Central
Government.
The proposed sole selling
agent, that is, M/s. BCD & Company Limited, is in retail business having
show room and outlets for considerable period in the areas covered by Haryana
and Delhi and has experience in handling the retail business of the products,
similar to those manufactured by your company. It is considered by the Board of
Directors Of Your company that the company will be able to market its products
through the proposed sole selling agents at a considerably less expenses
compared to direct marketing of such goods. This is also to bring to your
notice that none of your Directors is interested, either directly or indirectly,
in the affairs of the proposed sole selling agents, and none of the partners of
the said M/s. BCD & Company Limited holds any shares on the capital of your
company, either directly or through any relatives.
Your Directors recommend
acceptance of the resolution in the interest of your company.
A copy of the agreement, as
referred to above, containing the terms and conditions of appointment of the
said M/s. BCD & Company Ltd. as the sole selling agent for the above areas
has been kept at the registered office of the company for inspection by the
members of the company on any working days of the company between 11 a.m. to 2
p.m.
Section 309-Remuneration of
Directors
The remuneration payable to
the Directors of a company, including any Managing or Whole-time
Director, shall be determined in accordance with and subject to the provisions
of section 198 and section 309, 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. Genuine professional fees paid to a Director
for rendering professional services shall not be considered as a remuneration
within the meaning of the aforesaid sections. Provided the opinion of the
Central Government is obtained that the Director possesses the requisite
qualifications for practicing the profession.
Apart from remuneration
payable for rendering professional services, sub-section (4) of section
309 provides for payment of remuneration to a Director who is neither in a
Whole-time employment nor a Managing Director, either by way of monthly,
quarterly or annual payment or by way of a commission up to a limit of one per
cent of the net profits or three per cent of the net profits (if the company is
managed by Board of Directors having no Whole-time or Managing Director),
as the case may be. Pursuant to the aforesaid sub-section (4), no
approval of the Central Government is required to remunerate Directors who are
not in whole-time services of the company within the percentages
envisaged in the said sub-section (4). This section, however, allows
leverage to the companies desiring to pay remuneration more than the prescribed
percentages of profits but after fulfilling two conditions, namely,
(a) approval of the company
at a General Meeting; and
(b)subsequent approval of
the Central Government to the payment of enhanced percentage.
Payment of remuneration/Commission to Directors not in
whole-time employment of Company
RUSHABH
MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 on____the__2003 at___ a.m./p.m. to consider
and, if thought fit, to pass with or without modification the following
resolution as a Special Resolution:
"RESOLVED that in
conformity with article ................... of
the Articles of Association of the Company and clause (b) of sub-section
(4) of section 309 of the Companies
Act, 1956, authority be and is hereby accorded to the payment to the Directors
of the Company not being Managing[Whole-time Director(s) of the Company
(to be divided between the Directors not in the whole-time employment of
the Company in such manner, as the Board of Directors may from time to time
determine) one per cent of the net profits of the Company in each financial
year over a period of five years extending up to and including the financial
year of the company ending on 2003"
BY
ORDER OF THE BOARD
(X
Y Z)
Secretary.
Dated the .... 2003
NOTES: 1 .A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173 (2) of
the Act
As you are aware, your
company is being run by the Board of Directors who has an onerous job of
directing the company policy and supervising the performance of the Managing
Director of the company. Your Board feels that to increase the efficiency of
the overall management of the company and thereby to amply remunerate the
participating Directors to commensurate with the time, labour and risk
involved, your company may allow payment of commission of one per cent of the
net profits of the company among all the Directors not in whole-time
employment of the company. Pursuant to sub-section (5) of section 309,
such net profits, as referred to above, shall be computed in the manner
referred to in section 198 (1) and other applicable provisions of the Companies
Act, 1956. Sub-section (7) of section 309 provided that any Special
Resolution according authority for payment of remuneration to the Directors
shall not remain in force for a period of more than five years, but may be
renewed, from time to time, by Special Resolution, for further period of not
more than five years at a time. It is also a condition that no renewal shall be
effected earlier than one years from the date on which it is to come into
force.
With the exception of Mr…. who is in the whole-time employment of the company, all other Directors serve the company without any remuneration with the exception that each Director of the company is entitled to a fee of Rs. 5,000/- per meeting of the Board/committee attended by them.
The Directors, as referred
to above, of your company are interested in this resolution to the extent of
remuneration proposed to be paid to them.
Section 309(4)-Remuneration/payment
of commission to Directors
over the prescribed
limit
Sub-section (4) of
section 309 prescribes the following rate of commission/profit as remuneration
to the Directors not in the whole-time employment of the company:
(a) One per cent of the net
profits of the company, if the company has a Managing or whole-time
Director or a Manager: and
(b) Three per cent of the net profits of the company, in any other case.
A company at a General
Meeting may accord authority to pay the Directors of the company remuneration
in excess of the percentages mentioned above, but such resolution of the
members shall only be valid if approved by the Central Government. If any other
Director is in receipt of any commission in excess of the aforesaid limits
without the prior sanction of the Central Government, where it is so required,
he shall refund such excess amount paid to him as commission.
Proposal to pay Commission to Directors
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that an Extraordinary General Meeting of the Company will be held at the registered office of the Company at 301 Pitru Ashirwad Anand 388001 ,on ___the ___2003 at___ a.m./p.m. to consider and, if thought fit, to pass the following resolution, with or without modification, as Special Resolution:
"RESOLVED that in
conformity with the second proviso to subsection (4) of section 309 and section
310 of the Companies Act, 1956, and subject to the approval of the Central
Government in terms of the aforesaid provisions, authority be and is hereby
accorded to the payment to the Directors of the Company not being a
Managing/Whole-time Director of the Company of a commission at the rate
of five per cent of the net profits of the Company, to be divided between them
(or to be divided between them in such manner as they shall from time to time
determine) for a period of five years from ____2003
expiring with the financial year ending on the _____2003"
BY
ORDER OF THE BOARD
(X
Y Z)
Secretary.
Dated the .... 2003
NOTES: 1 .A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173 (2) of
the Act
Sub-section (4) of
section 309 of the Act provides for the rate of remuneration payable to the
Directors who are not in the whole-time employment of the company. The
second proviso added to the said sub-section allows a leverage to
companies to pass a Special Resolution for the payment of remuneration by way
of commission in excess of the prescribed percentage of the profits to such
categories of Directors subject to the approval of the Central Government
confirming payment of such excess remuneration. As the increase in the
percentage of profit for the distribution or remuneration amounts to increase
in sharing of profits within the meaning of section 310, according to that
section, any increase in the remuneration of any of the Directors (applicable
to public company only) shall not have any effect unless approved by the
Central Government and any resolution passed by the members thereof shall
become void if, and in so far as, it is disapproved by the Central Government.
You are aware that the
company is being managed by a General Manager who functions under such
direction and control as the Board of Directors decides to the best interest of
the company and the Board has to shoulder, enormous responsibility and risk for
the efficient direction of the company and for resultant good working of the
company from year after year even in the face of heavy odds. In view of the
changes and/or the introduction of number of restricting enactments, the
responsibility of your Board of Directors has considerably increased and it can
be safely assumed and with the various statutes in force such responsibility
will be on the gradual increase requiring shouldering greater risk and
responsibility and greater involvement of the Directors in the management of
the affairs of the company. You will agree that the Directors who are entitled
to a sitting fee of Rs. 5,000/- per Board or committee meeting attended
is not commensurate with the risk and responsibility faced by the Board of
Directors, and it is thought desirable that the Directors be remunerated for
the aforesaid reasons with higher percentage of profits, that is, at five per
cent of the net profits to be computed in the manner laid down in sub-section
(1) of section 198 of the Companies Act, 1956, for the period of five years
beginning with the financial year commencing from the ____2003 and up to the
conclusion of the financial year ending on the ___2007.
Pursuant to the second
proviso to sub-section (4) of section 309 of the Act, the proposed
Special Resolution shall be valid only after the approval of the Central Government.
An application to the Central Government for its approval pursuant to section
309 (4) and section 310 of the Companies Act, 1956, to the payment of
commission will be made soon after acceptance of the resolution by the members
in the aforesaid General Meeting.
All the Directors, as none
of them is a Whole-time Director, are interested in the resolution to the
extent of the commission payable to them in accordance with the aforesaid
proposed resolution..
Sub-section (7) of
section 309 limits the authority of the members of the company to authorise
payment of remuneration to the Directors (not in whole-time employment of
the company) inasmuch as, a Special Resolution conferring authority to payment
of commission to Directors shall not remain in force for a period of more than
five years at a time. Such approval, however, is renewable for further periods
but not exceeding five years at a time.
Proposal for renewal of Payment of Commission to Directors
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on ___the___2003
at___ a.m./p.m. to consider and, if thought fit, to pass the following
resolution with or without modification as a Special Resolution:
"RESOLVED that in
conformity with article .................... of
the Articles of Association of the Company and section 309(4)(b) of the Companies
Act, 1956, authority be and is hereby accorded to the continuance of payment
to the Directors of the Company of a commission (to be divided between them in
such manner as they shall from time to time determine) of three per cent of the
net profits of the Company in each financial year over a period of five years
extending up to and including the financial year of the Company ending on the
...............2003"
BY ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the ..... 2003
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173 (2) of
the Act
By a Special Resolution
passed by the company at the Annual General Meeting held on the___2003, sanction was accorded to the
payment to the Directors of the company of a commission of three per cent of
the net profits of the company to be divided between them in such manner as
they shall from time to time determine, for a period of five years expiring
with the financial year ended on the ___2003___The payment of commission at the
above rate is being made to the Directors since 1956 and the proposed
resolution only seeks to renew the aforesaid terms at the same rate for a
further period of five years in accordance with the provisions of section 309
of the Companies Act, 1956.
None of the Directors of the company is a Whole-time or Managing Director of the company. Apart from the commission on the net profits as aforesaid, each Director of the company is entitled to a fee of Rs. 5,000/- per meeting of the Board/committee attended by him.
The Directors of your
company are interested in this resolution to the extent of remuneration
proposed to be paid to them.
Section 310-Inerease in
remuneration/sitting fees of Directors
Subject to the provisions in
the Articles of Association of a company, it can allow each Director of the
company payable out of the funds of the company for his services in attending
meeting of the Board or any meeting of the committee of Directors, sitting fees
without intervention of the Central Government. In the usual course, the
Directors shall also be entitled to be paid their reasonable travelling, hotel
and other incidental expenses incurred by each of them in consequence of their
attending a Board or a committee meeting or otherwise incurred in the execution
of their duties as Directors.
A question arose as to
whether an increase in the quantum of expenses or incidentals should require
the confirmation of the Central Government or not in terms of section 310 of
the Companies Act, 1956, or whether a Director attending the Board/committee
meeting of two or three companies on the same day and in the same building
would be entitled to draw travelling allowance from all the companies or from
one of them only.
The question was posed to
the Department of Company Affairs and the opinion given thereto was that since
the travelling allowance should not be a source of profit, the Directors
concerned should claim only as much as would cover his actual expenses and, if
he so chooses, he may reimburse himself from each of the companies
proportionately so that the total amount drawn by him from all the companies
put together does not exceed the expense actually incurred by him. In regard to
the increase in the quantum of expenses, if such quantum is the amount actually
spent and such amount is only for reimbursement in that event, no question of
seeking the approval of the Government will arise.
Proposal for an increase of sitting fees to Directors
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on ___the___2003
at___ a.m./p.m. to consider and, if thought fit, to pass with or without
modification, the following resolution as a Special Resolution:
"RESOLVED that subject
to the approval of the Central Government and pursuant to the provisions of
section 310, approval of the Company be and is hereby given to the payment to
each Director out of the funds of the Company for his services in attending
meeting of the Board or a meeting of the committee thereof, a fee of Rs. 6,000/-
per meeting of the Board or committee, as the case may be, attended by him,
besides, reimbursement of actual travelling, hotel or any other incidental
expenses incurred by him consequent to his attending such
Board/committee meeting and
article .......................... of
the Articles of
Association of the company
be altered by substitution of Rs. 6,000/- in place of Rs. 5,000/
BY ORDER OF THE BOARD
(X Y Z) Secretary.
Dated the .... 2003
NOTES: - 1. A member
entitled to attend and vote at the meeting is entitled to appoint a proxy to
attend and vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173 (2) of
the Act.
Pursuant to the provisions
of section 310 of the Companies Act, 1956, and article of the Articles of Association of the company, the company is
debarred from increasing remuneration of the Directors by way of a fee for each
meeting of the Board or a committee thereof attended by any such Director
exceeding Rs. 5,000/-.
The Board hitherto used to
get remuneration by way of sitting fee to the extent of Rs. 5,000/-
(Rupees five thousand only) for each meeting of either of the Board or of the
committee thereof attended. In view of increasing responsibilities pressed on
the Directors of the company through various enactments, mainly those in regard
to payment of social benefits payable to the employees of a company, the
Directors have to exert increasingly more cautious attitude and greater
vigilance in the affairs of the management of the company. Your Directors, who
are not in the whole-time employment of the company, do not get any other
remuneration than by way of sitting fees. Under the circumstances, it was
considered fair that the remuneration of the Directors by way of sitting fees
be increased so as to partly commensurate with the unlimited responsibilities
shouldered by them. Pursuant to section 3 10 of the Act, the authority accorded
by the members at a General Meeting in excess of Rs. 5,000/- as
remuneration to the Directors for the aforesaid purposes shall have no effect
unless approved by the Central Government to such increase in remuneration.
With your approval duly accorded at the aforesaid General Meeting, the company will
make the necessary application to the Central Government for the increase of
the remuneration to the Directors as proposed.
Moreover, article ... of the Articles of Association of
your company is also changed accordingly by substituting Rs. 6,000/- in place
of Rs. 5,000/- with regard to sitting fees of Directors.
The Directors (except the
Directors in the whole-time employment of the company) of your company
are interested in this resolution to the extent of remunerations proposed to be
paid to them by way of sitting fees for each Board or committee meeting
attended by them.
Section 314(l)-Directors etc. not to hold office or place of
profit
The purport and effect of
this section which are very wide, aim to bring further curb on the activities
of the interested Directors and persons connected through him and in a position
to influence the company to a profitable objective. The section applies to all
companies and requires passing of Special Resolution to obtain the accord of
the company at a General Meeting immediately thereafter or within three months
from the date of appointment, whichever is later, for holding a place or office
of profits.
The section covers the
following persons:
(a) a Director, other than a
Managing Director or Manager;
(b) any partner of a
Director;
(c) any relative of the
Director (relative as defined in section 2(41) and section 6 of the Act);
(d) any firm in which any
Director or his relative is also a partner;
(e) any private company in
which the Director is either a Director or a member;
(f) any Director or Manager
of the private company in which the Director is either a Director or a member.
Section 314(IB)-Holding office of
profit by a relative of a
The Companies (Amendment) Act, 1988, attempted to waive the monetary restriction on the appointments of the relatives of Directors or Managers of the company to hold an office or place of profit in the company by inserting that the monetary limit will be such sum as may be prescribed. Rule IOC of the Companies (Central Government’s) General Rules and Forms, 1956 prescribes the said sum to be Rs. 20,000/- with effect from 1st March, 1994.
The section puts a
restriction originally under clause (b) of sub-section (I ) to any of the
Directors/relatives/firms/partners connected with a Director etc. to hold any
office or place of profit under the company carrying a total monthly
remuneration of such sum as may be prescribed and the said prescribed sum is
Rs. 10,000/- with effect from 1st March, 1994. The removal of obstruction
under this clause prescribed by the first proviso to the said sub-section
was to pass a Special Resolution to accord consent of the company in the first
General Meeting of the company held for the first time after holding of such
office or place of profit.
Sub-section (1B) negates the leniency of obtaining subsequent approval of the company in General Meeting, as required under clause (b) of sub-section (1). The sub-section (1B) starts with negative accent, such as, 'Notwithstanding anything contained in sub-section (1)'. In the case of clause (b) of sub-section (1), retention is not as wide as in sub-section (1B) of the section. The restriction under sub-section (1B) is, however, limited to the following categories of association of a Director or Manager of a company prohibiting holding of office or place of profit without obtaining prior approval of the company at a General Meeting by a Special Resolution and the approval of the Central Government:
(a) a partner or relative of
a Director or Manager;
(b) a firm in which such Director or Manager, or relative of either, is
a partner;
(c)a private company of
which such a Director or Manager or relative of either, is a Director or
member.
Compliance Certificate [S. 383-A(l)
proviso]
Companies having paid-up
share capital of less than Rs. 2 Crores but equal to or more than Rs. 10 lakhs
are required to obtain a Compliance Certificate from a secretary in whole-time
practice to be filed with the Registrar of Companies mentioning therein inter
alia that the company has obtained necessary approvals from the Board of
Directors, members and previous approval of the Central Government pursuant to
section 314 of the Act wherever applicable as per paragraph II of the Form of
Compliance Certificate appended to the Companies (Compliance Certificate)
Rules, 2001.
Appointment of a firm of consultants of which a Director of the
company is a partner of the said consultant firm
RUSHABH MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at 301 Pitru Ashirwad Anand 388001 ,on___the___2003 at___
a.m./p.m. to consider and if thought fit, to pass with our without
modification, the following resolution as a Special Resolution:
"RESOLVED that pursuant
to the provisions of clause (b) of subsection (1) of section 314 and other
applicable provisions, if any, of the Companies Act, 1956, authority be and is
hereby accorded for the appointment of M/s. XYZ Consultants, a firm in which
Mr. AB, a partner of the said firm, Is a Director of this Company, at a monthly
remuneration of Rs. 18,000/- plus any out-of-pocket expenses
for acting and continuing to act as the Registrar of the Company".
BY ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the .... 2003
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173(2) of
the Act
M/s. XYZ Consultants, are a
firm of repute having arrangement of dealing with share transfer and
registration jobs in mass scale with the medium of quite modern data processing
equipment. You are aware that the job of registration of transfers etc. entails
input of intensive clerical labour and mechanized means is much faster and
neater compared to the manual execution of the job.
Mr. AB, who is a Director of
your company, is a partner of M/s. XYZ Consultants and as M/s. XYZ Consultants,
may be considered as holding an office or place of profit under the company
within the meaning of section 314 of the Companies Act, 1956, your Directors
considered to obtain your accord to the appointment of the said firm as the
Registrar of your company entrusted with all types of dealing and registration
of share transfer of the company which is voluminous.
M/s. XYZ Consultants, as the
Registrar of your company, will be paid a lump sum remuneration of Rs. 18,000/-
per month plus cost of stationery etc. Recording of transfer of
shares/debentures entails various statutory formalities and is labour
intensive. A senior clerk and an assistant to look after the company's transfer
of shares and maintenance of the records there for will definitely cost the
company more than Rs. 10,000/- per month and, therefore, the arrangement
though attracts the provisions of sections 314(l)(b) of the Companies Act,
1956, the appointment of M/s. XYZ Consultants will be to the benefit of the
company.
None of the Directors, except Mr. AB, as being a
partner of M/s. XYZ Consultants, is interested in the arrangement.
Your Directors recommend
your acceptance and passing of the proposed Special Resolution in the interest
of the company.
Appointment of a relative of a director to office or place
RUSHABH
MANAGEMENT & INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at Anand 388001, on___the__2003 at__ a.m/p.m. to consider
and, if thought fit, to
pass with or without
modification, the following resolution as a Special Resolution:
"RESOLVED that pursuant
to the provisions of sub-section (1B) of section 314 and other applicable
provisions of the Companies Act, 1956, and subject to the approval of the
Central Government, authority be and is hereby given to the appointment of Mr.
KDC, a relative of a Director of the Company, to hold and to continue to hold a
place of office of profit under the Company pursuant to the terms and
conditions as embodied in a service agreement which is hereby submitted before
the meeting, being initialed by the Chairman hereof, at a salary in the grade
of Rs ___plus other perquisites as applicable to the senior staff of the
Company.
RESOLVED FURTHER that the
Board of Directors be and is hereby authorised to effect such modification in
the remuneration or the scale or any other perquisites payable to Mr. KDC (not
being more advantageous to Mr. KDC) as may be approved by the Central
Government and as may be agreed to by the Board and Mr. KDC".
BY
ORDER OF THE BOARD
(A
B C)
Secretary.
Dated the .... 2003
NOTES: 1.A
member entitled to attend and vote at the meeting is entitled to appoint a
proxy to attend and vote instead of himself and the proxy need not be a member
of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173(2) of
the Act
Mr. KDC, who has been selected
by your Board of Directors to hold the position of a Commercial Manager of the
company inter alia at a salary in the grade of Rs is a relative of Mr. AB, who is a Director on the Board of your
company, sub-section (1B) of section 314 of the Companies Act, 1956,
provides that no relative, etc., of a Director should either hold or continue
to hold any office or place of profit in the company which carries a total
monthly remuneration of not less than twenty thousand rupees, except with the
prior consent of the company by a Special Resolution and also the approval of
the Central Government.
Mr. KDC, who happens to be a
relative of one of your Directors, is a qualified person having very rich and
successful career behind him and having worked for the last ten years in the
same capacity with a company who partly competes with the products manufactured
by your company. Your Directors are definite that inclusion of Mr. KDC in the
senior cadre of your company will be to the immense benefit of the marketing
side of the products of your company.
A draft of an agreement
proposed to be entered into with Mr. KDC has been kept for the inspection of
the members between 11 a.m. to 2 p.m. during the working days of the company.
Apart from salary, as
mentioned above, provision has been made in the said service agreement for
usual allowance and perquisites available to other senior officers of the
company, such as, benefit of a rent free unfurnished house, company car with a
driver, entertainment expenses within the rules of the company made therefore,
payable to Mr. KDC, and he also will be entitled to the benefits of the
company's super annuation fund, retiring gratuity and provident fund. The Board
has reserved its authority to grant increment in salary to Mr. KDC at its sole
discretion within the scale mentioned above.
None of the Directors,
except Mr. AB, is directly or indirectly interested in the aforesaid resolution
and recommends your acceptance thereof in the interest of the company.
Section 323-Making of liability of Directors, etc., unlimited
In a company with limited liability, liability of every person connected with the company is limited. The above section prescribes that a limited company may, if so authorised by its articles, by Special Resolution, alter its memorandum so as to render unlimited the liability of its Directors or of any Director or Manager. In the Memorandum of Association of a company, the usual provision included is for the limitation of the liability of the members of the company and there is no clause usually provided in the memorandum for the limitation or otherwise of the Directors' activities or liabilities there for. Under this section, a new clause, making the Directors' liability unlimited may be included by a Special Resolution.
Making liability of
Directors Unlimited
RUSHABH MANAGEMENT &
INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at Anand 388001,on___the___2003 at___ a.m./p.m. to
consider and, if thought fit, to pass with or without modification, the
following resolution as a Special Resolution:
"RESOLVED that the
Memorandum of Association of the Company be and is hereby amended by inclusion
of a new clause 4A after clause 4 reading as:
4A. That subject to the
applicable provisions of the Companies Act, 1956, the liability of the Managing
Director arising out of the management of the Company will be unlimited".
BY ORDER OF THE BOARD
(A B C)
Secretary.
Dated the___2003
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, In respect of
the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173 (2) of
the Act.
Section 16 of the Companies Act, 1956, provides that a company shall not alter any of the conditions contained in its memorandum except in the mode, and to the extent for which express provision is made in the Act. So, if any specific provision is there in the Companies Act, any clause of the Memorandum of Association may be amended/included or altered pursuant to such specific provision and such amendment does not require to be confirmed or approved either by the Company Law Board as may be required under section 17 and other sections of the Act.
Your Directors feel that in
view of the introduction of various enactments to attain the socialistic
pattern of the society, the Directors who are not in the whole-time job
are increasingly being exposed to various punishment and penalties being
imposed by various acts. The reason for the proposed inclusion of a new clause
4A in the memorandum is to a and for the default of guard the interest of the
company to carry out statutory 1 which the Managing Director will be liable if
not otherwise statutorily protected. No other Director except the Managing
Director is interested in the aforesaid resolution. Directors recommend your
acceptance in the interest of the company.
Section 372A-Inter-Corporate loans and investments
The provisions of section
372A of the Companies Act, 1956, seek to regulate inter corporate loans and
investment by a company in other bodies corporate, wither and beyond certain
prescribed limitations. Under the provisions of this section, the Board of
Directors of' a company shall be entitled to invest in any shares or debentures
of another body corporate up to sixty per cent of the paid-up share
capital of the company and its free reserves, or less than one hundred per cent
of its free reserves, whichever is more. If any company wants to makes
investment in other bodies corporate exceeding the above limits that company
should obtain the previous authorisation of the company by passing a special
resolution.
The provisions of this section are not applicable to any banking company or to an insurance company or a housing finance company in the ordinary course of business or a company established with the sole object of financing industrial enterprises or of providing infrastructure facilities or to a private company unless it is a subsidiary of a public company and an investment company. The provisions of this section are also not applicable to any loan made or any guarantee given or security provided by a holding company to its wholly owned subsidiary. The provisions are again not applicable to any acquisition by a holding, by way of subscription, purchases, or otherwise, the securities of its wholly owned subsidiary or to any investment made in shares allotted in pursuance of section 81 (1)(a).
The Companies will henceforth
have full freedom to make inter-corporate investments and loans to other
bodies corporate. No prior approval of the Central Government will be required
for this purpose. They can make investments or give loans up to 60% of their
paid -up share capital and free-reserves or less than 100% of free
reserves, whichever more with the approval of Board of Directors. For
investments and loans beyond this limit the companies will have to pass a
special resolution in the general meeting. The special resolution mentioned
above will have to clearly specify the limits, the particulars of the body
corporate in which the investment is proposed to be made or loan to be given,
the purpose of investment and sources of funding etc. The companies will not be
allowed to give loan to any body corporate at a rate of interest lower than the
prevailing bank rate. Listed Companies are required to pass the special
resolution through postal ballot" as per Rule 4(g) of the Companies
(Passing of Resolution by Postal Ballot) Rules, 2001.
No loan or investment should
be made or guarantee or security be given by the Board of Directors of any
company unless the resolution sanctioning it is passed at a meeting of the
Board with the consent of all the Directors present at the meeting. The prior
approval of the public financial institutions with whom any term loan of the
company is subsisting is to be obtained if such loan or investment or guarantee
or security provided in connection with such loan exceeds 60% of the paid-up
share capital and free reserves of the company or 100% or more of its free
reserves whichever is more default has been made in repayment of loan
installments or payment of interest to the public financial institutions.
Compliance Certificate.-Under section 383-A(l)
proviso companies having paid-up share capital of less than Rs. t2 Crores
but equal to or more than Rs. 10 lakhs are required to obtain a Compliance
Certificate from a secretary in whole-time practice to be filed with the
Registrar of Companies mentioning therein inter alia that the company has made
loans and investments or given guarantees or provided securities to other
bodies corporate in compliance with the provisions of the Act and has made
necessary entries in the register kept for the purpose as per paragraph 2.5 of
the Form of Compliance Certificate appended to the Companies (Compliance
Certificate) Rules, 2001.
Making loans to other bodies
corporate
RUSHABH MANAGEMENT &
INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at Anand 388001,on___the___2003 at_____a m/p.m. to
consider and, if thought fit, to pass
with or without modifications the following resolution as a Special Resolution:
"RESOLVED that pursuant
to the provisions of section 372A of the Companies Act, 1956, the Board of
Directors of the Company be and is hereby authorised to make any loan or give
any guarantee, or provide security, in connection with a loan made by any other
person to or to any other person by any body corporate which will exceed sixty
per cent of the paid-up share capital and free reserves or hundred per
cent or more of the Company's free reserves which ever is more."
BY ORDER OF THE BOARD
(A B C)
Secretary.
Dated the ____2003
NOTES: 1.A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
3.The special resolution
requires consent of shareholders through postal ballot.
Explanatory Statement pursuant to section 173 (2) of
the Act
The company has in the past
advanced loans from time to time to other bodies corporate besides providing
guarantee or security in connection with a loan to other bodies corporate by
other persons or companies. Section 372A of the Companies Act, 1956, puts a
limit that the Board of Directors in their usual dealings with the funds of the
company will be able to advance loan/guarantee/security up to sixty per cent of
the paid-up share capital and free reserves of the company or less than
one hundred per cent of the free reserves of the company whichever is more.
Any loan, in excess of the
aforesaid percentage, is subject to the prior approval of the members of the
Company by passing a Special Resolution.
In the process of the
management of the business, it is expected that the company may be required to
advance loan/guarantee/security in excess of sixty per cent and in that case
the company will have to convene a General Meeting to accord approval of the company
for advancing loan In excess of sixty per cent every time.
The purpose of the proposed
resolution is to provide to the Directors a maximum ceiling exceeding sixty per
cent of' the paid-up share capital of this company and its free reserves
or one hundred per cent or more of the company's free reserves, whichever is
more. In the event of your acceptance of the aforesaid Special Resolution, no
further Special Resolution or resolutions shall be deemed to be necessary for
the making of any loan or loans within the aforesaid limit of sixty per cent.
The proposed loan will be at a rate of interest of per cent per annum which is not lower than the
prevailing bank rate of interest.
None of your Directors is
personally interested in the proposed Special Resolution and recommends your
acceptance thereof in the interest of the efficient administration of the
company.
Investment in shares in
excess of the limits
RUSHABH MANAGEMENT &
INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at Anand 388001,on___the___2003 at___ a.m./p.m. to
consider and, if thought fit, to pass the following resolution, with or without
modification, as a Special Resolution:
"RESOLVED that pursuant to the provisions of section 372A of the Companies Act, 1956, and subject to any other applicable provisions of either the Foreign Exchange Regulation Act and any such other provisions, if any, authority be and is hereby accorded to the Board of Directors of the Company, to invest the funds of the Company in other bodies corporate in excess of 60 per cent of the paid-up share capital and free reserves of this Company or 100 per cent or more of the free reserves of this Company whichever is more".
BY ORDER OF THE BOARD
(A B C)
Secretary.
Dated the ___2003
NOTES: 1A member entitled to
attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
3.The special resolution requires
consent of shareholders through postal ballot.
Explanatory Statement pursuant to section 173(2) of
the Act
In order that the Directors
may make suitable investments in shares as and when necessary, more than 60 per
cent of the paid-up share capital, or free reserves of the company, or
100 per cent or more of the free reserves of the company whichever is more, the
Directors seek your accord to the proposed resolution to enable the Directors
to invest the funds of the company in any body or bodies corporate in excess of
the aforesaid limits.
The proposed resolution is
for the purpose of fulfilling the conditions laid down in section 372A of the
Companies Act, 1956.
None of your Directors is
interested in the proposed special resolution and recommends your acceptance
thereof in th~ interest of the company.
Section 372A-Another form for obtaining authority of the
members
to make investment in shares of body corporate in a foreign
country
Instances are quite in number in regard to participation by an Indian company either in floatation or sharing the ownership of an existing foreign company by an Indian company, especially in the case- of joint venture projects undertaken by the Indian in cooperation with the foreign company outside India. The procedures that are followed in such cases is that the approval for the capital participation in the joint venture company has to be obtained first with the initial proposal from the Ministry of Finance (Central Government) and the Reserve Bank of India before any move is made by the investing company for participation in the shares of a foreign company. The only formality to be done is to meet the compelling provisions of section 372A of the Companies Act, 1956, that is, to obtain the accord of the company to such investments if such investments are in excess of the limit of sixty per cent of the paid-up share capital and free reserves of the Company or one hundred per cent or more than one hundred per cent of the free reserves of the Company, whichever is more. In such joint venture projects, equity participation is usually allowed against export of either plant and machinery or technical know-how or as per the latest industrial policy of the Government.
Investment in shares of a
Foreign Company
RUSHABH MANAGEMENT &
INFOSYS
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the Company will be held at the registered
office of the Company at Anand 388001,on ___the__2003 at ____a.m./p.m. to
consider and, if thought fit, to pass the following resolution, with or without
modification as a Special Resolution:
"RESOLVED that subject
to the approval of the Reserve Bank of India and pursuant to the provisions of
section 372A of the Companies Act, 1956, authority be and is hereby accorded to
the Board of Directors of the Company for subscribing ₤____for the
purpose of acquiring 5,00,000 equity shares in Nairobi Coffee Plantations Ltd.,
Nairobi, Kenya (equivalent to Rs approximately) notwithstanding the fact that
such amount is in excess of sixty per cent of the paid-up share capital
of this Company and its free reserves or one hundred per cent or more of its
free reserves whichever is more".
BY ORDER OF THE BOARD
( X Y Z ).
Secretary
Dated the____2003
NOTES: 1. A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
3. The special resolution
requires consent of shareholders through postal ballot.
Explanatory Statement pursuant to section 173 (2) of
the Act
Nairobi Coffee Plantation
Company Ltd. is an existing company incorporated under the laws in Kenya,
Africa, for the plantation, marketing, exporting of coffee in the gardens
maintained by the said company. The company's substantial holding of shares are
with the Steward & Co. Ltd., incorporated in the U.K. and who are also
business associates of your company in the marketing of tea and coffee produced
by your company in the U.K. The said Steward & Company Ltd. offered this
company to sell its entire holding of 5,00,000 equity shares in Nairobi Coffee
Plantation Company Ltd. and this company taking this offer as an opportunity to
enlarge its field of operation in its line accepted the offer to purchase the entire block at a
price of ₤____ This company
placed the proposal first before the Central Government (Ministry of Commerce)
who duly approved the proposal put forward by the company. The approval of the
Reserve Bank of India has also been obtained for the utilization of foreign
exchange and for investments in foreign shares.
Section 372A of the
Companies Act, 1956, limits the power of the Board and requires that any
investment must be made by the investing company in excess of sixty per cent of
the Company's paid-up share capital and free reserves or one hundred per
cent or more of the Company's free reserves, whichever is more of the value of
shares of other company with the sanction by a special resolution of the
investing company in General Meeting and so we have this proposal for your
formal accord. The approval letter from the Reserve Bank of India can be
inspected at the registered office of your company at any time in the ordinary
business hours, during working days.
None of your Directors is
interested in the proposal and recommends your acceptance thereof in the
interest of the company.
Sections 391 & 394-Compromise or making arrangements with
creditors and members
The provisions of sections
391 to 394 of the Companies Act, .1956, dealing with the above subject, applies
to companies as defined in section 390 of the Act. According to section 390,
the expression 'company' means any company liable to be wound up under this
Act, and that the expression arrangement includes a re-organisation of
the share capital of the company by the consolidation of shares of different
classes or by the division of shares into shares of different classes or by
both these methods. Seksaria Cotton Mills Ltd. v. A.E. Naik, (1967) 37 Comp
Cases 656.
Schemes of arrangements
under sections 391 to 394 should always be with some consideration involving
transfer of rights, powers, duties and property as are capable of being
lawfully transferred by a party to the scheme. If any part of the scheme
includes anything which the parties cannot bind themselves to do, then that
part of the scheme considered to be a nullity. In re: Skinner, (1958) 3 AER
273.
The jurisdiction of courts
in granting schemes of arrangement primarily is supervisory. The Court is not a
rubber stamp. Under the supervisory Jurisdiction with a limited scope, the
court can see the actual transfer proposed to be effected. Rama Petrochemicals
Ltd., In re, (2000) 100 Com Cases 807 (P&H).
In a scheme of merger of a subsidiary company with holding company Court will not sit in judgment over wisdom of shareholders and such a scheme is not a tool for creditor to recover money or coerce the company to pay. Zee Interactive Multimedia Ltd. In re, (2003) 111 Com Cases 733 (Bom).
All notices convening
meetings under these sections originate from the Court's order on an
application made to the Court usually by the Board of Directors of the company
on behalf of or by the members or creditors of the company. The notice is
usually issued by the person appointed by the Court to conduct the meeting to
deal with the necessary arrangement under petition.
arrangement under petition
Ss. 391-394-Notice
to conduct the meeting to deal with the necessary arrangement under petition
Company Application No ____of 2003 IN THE HIGH COURT
AT DELHI (Original Jurisdiction)
In the matter of the
Companies Act, 1956
AND
In the matter of Sections
391, 392 and 393 of the said Act
AND
In the matter of M/s. PQR
& Company Ltd.
AND
In the matter of M/s. SKP & Company Ltd.
1. M/s. PQR & Company Limited Applicant No. 1
2. M/s. S KP & Company Limited Applicant No. 2
NOTICE
Convening meeting of the shareholders of the
applicants
Notice is hereby given that by an order dated the ___2003, the Hon'ble High Court at Delhi has directed separate meetings to be held of the members of the abovementioned applicants for the purpose of considering, and, if thought fit, approving with or without modifications, a scheme of amalgamation proposed to be made between the applicant No. 1 and its members so far as the same relates to the amalgamation of the applicant No. 1 with the applicant No. 2.
In pursuance of the said
order and as directed therein, notice is hereby given that separate meetings of
the members of the said applicants will be held at the place and the time set
out in the schedule hereto and at that time and place the said members of the
said applicant companies are requested to attend.
Copies of the said scheme of
amalgamation and of the statements under section 393 of the Companies Act,
1956, can be had free of charge at the registered office of the said applicant
companies.
Persons entitled to attend
and vote at the meetings may vote in person or by proxy, provided that all
proxies in the prescribed forms are deposited at the registered office of the
said applicants at ___not later than forty-eight hours before the
meeting.
Forms of proxy have been
enclosed with the notice of the meeting posted to individual members by name at
their registered addresses. The form will also be available at the registered
office of the said applicants.
The abovementioned scheme of
amalgamation, if approved by the said meeting, will be subject to the
subsequent approval of the Court.
BY ORDER OF THE BOARD
(A B C)
Director.
Dated the___ day of ___2003
It is further notified for
the information of all concerned that:
Mr. TK, Advocate, has been
appointed Chairman for the meeting of the equity shareholders of the applicant
No. 1.
Mr. BC, Advocate, has been
appointed Chairman for the meeting of the ordinary shareholders of the
applicant No. 2.
Mr. AGM, Barrister-at-law,
has been appointed Chairman for the meeting of the 71/2 per cent 'A' cumulative
preference shareholders of the applicant No.. 1.
Mr. PB, Barrister-at-law,
has been appointed Chairman for the meeting of 8 per cent 'B' cumulative
preference shareholders of the applicant No. 2.
The scheme above referred
to:
Name of the applicant, date,
time and place of meeting and Chairman appointed by the Court
1. M/s. PQR & Company
Ltd. (equity shareholders), Applicant No. 1, .....2001___at___a.m./p.m. at the
registered office of the applicant company No.1 at___ Mr. TK and failing him
Mr. BX, Advocate.
2. M/s. SKP & Company
Limited (equity shareholders), Applicant No. 2,____2003 at ___a.m./p.m. at the
registered office of the applicant company No. 2 at ___Mr. BC, Advocate and
failing him Mr. AC, Advocate.
3. M/s. PQR & Company
Limited (71/2 per cent cumulative preference share holders), of Applicant No. 1
___2003 at a.m./p.m. at the registered office of the applicant company No. 1 at
___Mr. AGM, Barrister-at-law and failing him Mr. TP, Barrister-at-law.
4. M/s. PQR & Company
Limited (8 per cent 'B' cumulative preference share holders) of Applicant No.1 ___2003at ___a.m./p.m. at the registered office
of the applicant company No. 1 at ____Mr. PB, Barrister-at-law and
failing him Mr. SP, Barrister-at-law.
Compromise or arrangement with creditors
A company may have to face
litigations instituted by its creditors on its failure to fulfil the commitment
to pay to such creditors. Application by the creditors is usually made to the
Court to wind up the company for being unable to pay its debts under the
Companies Act, 1956. The similar formalities, as indicated on page ___follow
and a meeting is usually called by the Court to assess the majority voice of
the creditors to the scheme of compromise or arrangement submitted either by
the company or by the creditors themselves. The scheme of compromise may be
accepted by the creditors but this should be followed by a notice served by the
company for a meeting as required for formal approval of the scheme to be
sanctioned by the Court. Any scheme which is fair and reasonable and made in
good faith will be sanctioned if it could reasonably be supported by sensible
people to the benefit of each class of the members or creditors concerned. In
re:
Hindustan General Electric Corporation Ltd., AIR
1959 Cal 679.
Meeting of Creditors for
acceptance of an arrangement
RUSHABH MANAGEMENT &
INFOSYS
NOTICE
Notice is hereby given to
the creditors of the Company, both secured and unsecured, that a meeting of the
creditors of the Company will be held at the registered office of the Company
at Dhantoll, Nagpur 440 012, on ___the ___2003 at ___a.m./p.m. to consider and,
if thought fit, to accept the following scheme of arrangement, with or without
modification subject to confirmation/approval of the Court;
WHEREAS the loan/cash credit
obtained by the Company from its bankers is fully secured by a charge on the
entire fixed assets of the Company and charge by way of hypothecation on the
stocks, raw materials, book debts, and work-in progress and whereas the unsecured
creditors cannot be covered by any worthwhile security by the Company;
AND WHEREAS the company has
approached the creditors for a measure in mutual interest to pull up the
company to a healthy financial position;
AND WHEREAS it is hereby
agreed that the company will make a payment of thirty per cent of its unsecured
debts for the time being shown in the books of the company in regular monthly
instalments as may be found convenient by the Board of Directors of the
Company;
NOW THEREFORE IT IS AGREED
that no part of the debt will carry interest and that the Company be allowed a
moratorium for a period of three years from the date of this meeting and on the
end of such period the Company and the creditors again review the financial
position of the Company for making an arrangement to pay the balance seventy
per cent either at a time or by suitable instalments as may be agreed upon, and
to pass the following resolution, with or without modification, as an Ordinary
Resolution:
"RESOLVED that Mr ___and Mr ____the Directors of the Company, be and are hereby jointly authorised to make a petition before the Hon'ble High Court at Mumbai under sections 391 and 394 of the Companies Act, 1956, for the approval/sanction of the aforesaid scheme and also to initiate further action as may be considered necessary by the Court".
BY ORDER OF THE BOARD
(A B C)
Secretary.
Dated the___2003
NOTES: 1 .A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
3.A copy of the scheme of arrangement, the statement
under section 393 and a Form of proxy are enclosed herewith.
Explanatory Statements pursuant to section 173(2) of
the Companies Act, 1956
The Company has ___unsecured creditors as on___2003 and it has also ____secured creditors fully secured by a charge on the entire fixed assets of the Company and also a charge by way of hypothecation on the stocks, raw materials, book debts and work in progress. As the unsecured creditors cannot be covered by any security by the Company except by way of second charge on the fixed assets and movables of the Company, the Board of Directors thought it fit to repay the unsecured creditors gradually in instalments in order to maintain a healthy financial position of the Company. It was further considered by your Board of Directors that 30% of the unsecured debt of the Company be paid in regular monthly instalment so that the unsecured creditors are properly covered without putting your Company to unreasonable financial burden. The remaining 70% of the unsecured creditors shown in the books of the Company as on _____2003 will also be repaid once the 30% unsecured creditors are fully paid.
A scheme to this arrangement
has been arrived at between 30% unsecured creditors and your Board of
Directors, a copy of which is enclosed to this notice for your perusal.
None of the Directors of the
Company is concerned or interested in the aforesaid resolution and therefore,
they recommend the passing of the said resolution.
Scheme of arrangement/compromise
Sub-section (2) of
section 391 of the Companies Act, 1956, provides that the
shareholders/creditors, as the case may be, must approve of the scheme of
arrangement or compromise at least by three-fourths majority. Any member
who though present at the meeting but does not participate in voting for or
against the scheme and remained neutral, shall not be considered in assessing
the aforesaid majority.
It may be observed that in
the case of the above section, the place of voting by proxy is also made
negative for the consideration of three-fourths majority if such voting
of proxies is not allowed under the rules of the Supreme Court made under
section 643 of the Companies Act, 1956. The expression used in the section as
'present and voting' either in person or where proxies are allowed under the
rules made under section 643 of the Act, meaning that voting should be validly
carried on by those who are present at the meeting unless the rules so allow.
So, the majority of the three-fourths of the value must be of persons who
were present and took part in voting or other proxies if the rules made under
section 643 of the Act so allow.
Section 391-Regional Director's objection to a scheme
In a petition for sanction
of the Court to a scheme of amalgamation of a company, Regional Director of
Company Affairs is not entitled to object with regard to the correctness of the
ratio of exchange of shares allotted in the amalgamation scheme. The objections
for such correctness is to be raised by the shareholders of the transferor
company or the transferee company, if there be any. If in their commercial
wisdom the shareholders of the transferor company and the transferee company
accept the said ratio of shares, it would not be open for the Regional Director
to raise objection to that ratio. At the most that contention could be raised
by secured creditors or unsecured creditors who are likely to be affected by
the same. The court will also not question the commercial wisdom of the
shareholders if the shareholders with their eyes open are accepting the ratio
of exchange of shares. Operations Research (India) Ltd., (2000) 101 Com Cases
101 (Guj).
Section 395-Notice of dissent to the shareholders dissenting
from the scheme
Where a scheme or contract
involving the transfer of shares or any class of shares in a company
(transferor company) to another company (transferee company) has, within four
months after the making of the offer in that behalf by the transferee company,
been approved by the holders of not less than nine-tenths in value of the
shares whose transfer is involved, the transferee company may, at any time
within two months after the expiry of the said four months, give notice in the
prescribed manner to any dissenting shareholder, that it desires to acquire his
shares; and when such notice is given, the transferee company shall, unless on
an application made by the dissenting shareholder within one month from the
date on which the notice was given, the Court thinks fit to order otherwise, be
entitled and bound to acquire those shares on the terms on which under the
scheme or contract, the shares of approving shareholders are to be transferred
to the transferee company.
The provision of this
section, to some extent, is a deviation from the action to be taken by the
Court, pursuant to the provisions of section 391, in order to sanction a
scheme. Where the necessary majority has been obtained for the scheme, the
Court will only interfere in case any dissentient member makes an application
questioning the fairness of the scheme and not otherwise:
The provisions of this
section do not apply to a scheme or contract involving the transfer of shares
in a company to two other companies jointly. Blue Metal Industries Ltd., v.
R.N. Dilley, (1976) 3 All ER 537.
The notice, as referred to
above, has been prescribed under Form No. 35 of the Companies (Central
Government's) General Rules & Forms, 1956.
Statement under section
393(l)(a) of the Companies Act, 1956
Pursuant to the notice of a
General Meeting of the members convened under the direction of the High Court
at Bombay for the purpose of approving with or without modification a 'Scheme
of Amalgamation' of International C.D.W. Company Limited with your company and
pursuant to the provision of S. 393, the following statement is sent for your
consideration.
The resolution 17 to be
submitted at the said meeting will read as follows
1. International C.D.W. Company Limited is a company limited by shares which was incorporated under the Companies Act, 1956, on the 2nd November, 1957.
2. International C.D.W.
Company is carrying on the business in switchgear and electrical equipments,
etc.
3. Your Directors in
consultation with the Directors of International C.D.W. Company Limited have
framed a scheme of the proposed amalgamation, a copy of which is attached
hereto. Under the said scheme the entire undertaking of International C.D.W.
Company Limited subject to the debts, liabilities, duties and obligations will
be transferred to your company without further act or deed by an order to be
made by the High Court of Bombay under section 394 of the Companies Act, 1956.
4. Your Company is holding
78 per cent shares of International C.D.W. Company Limited, besides the activities
of the International C.D.W. Company Limited, are in the engineering line which
is also more or less the main object of your company. In fact, International
C.D.W. Company Limited presently manufactures some of the electrical assembly
lines and electrical equipment for your, company which otherwise your company
would have to purchase from the market. The Directors of your company and of
International C.D.W. Company Limited are, therefore, of the opinion that if the
entire undertaking of International C.D.W. Company Limited is amalgamated with
your company the combined undertaking can and will be carried on more
economically and more efficiently and considerable rationalisation and economy
in manufacture can be undoubtedly achieved leading to reduction of cost of
production and increased profitability.
5. The transfer when
sanctioned and subject to the fulfilment of further conditions mentioned in the
relevant paragraph of the scheme will take effect from the 1st day of August,
2000. Since your company holds 78 per cent of the share capital of
International C.D.W. Company Limited, there shall be little consideration to be
payable for the rest of the shares in International C.D.W. Company Limited. The
remaining shares are, however, subject to the approval of the Reserve Bank of
India, which your company intends to purchase in full. If, in any event,
Reserve Bank of India's approval is not received by your company on or before
the effective date, your Directors shall have the power to fix or further the
effective date depending on the suitability of the circumstances.
6. The shares held by the
Directors of your company and International C.D.W. Company Limited in
respective companies are set out below and such Directors may accordingly be
deemed to be interested or concerned in the scheme to the extent thereof:
Sr. Directors of Shares
held Particulars Shares held in
No. your company in
your company International
C.D.W.
equity
Company Ltd.
1 . Mr. R.P.W. 100 Jointly
with others. -
2. Mr. O.P.W. 100 Jointly
with others. -
3. Mr. K.K.W. 100 Jointly
with others. -
4. Mr. V.K.W. 100 Personal
holding. -
5. Mr. S.K.W. 100 Jointly
with others. -
6. Mr. A.K.W. 100 Personal
holding. -
7. Mr. G.K.W. 100 Jointly
with others. 10
8. Mr. N.K.W. 100 Personal
holding. 1
Total 800 11
_______________________________________________________________________________________
Sr. Directors of Shares
held Particulars Shares held in
No. International in
your company International
C.D.W
Company. equity. C.D.W.
Company Ltd.
_______________________________________________________________________________________
1 Mr. K.D.W. Personal
holding. 100
2. Mr. M.C.W. - Jointly
with others. 300
3. Mr. C.D.W. 75 Jointly
with others. 10
4. Mr. V.B.W. 200 Jointly
with others. -
5. Mr. V.P.W. 200 Jointly
with others. -
______ ______
Total 475 410
This statement may also be
treated as an Explanatory Statement under section 173 of the Companies Act,
1956.
7. Proposed scheme of
amalgamation is attached.
Sd/
T.N.T.
Dated: 30th June, 2003. Chairman appointed for the meeting.
Specimen statement pursuant
to S. 393(l)(b)
Dear Sir/Madam,
Attached hereto is a notice
convening a meeting of the holders of ordinary share capital in the company
directed by the Court to be held for the purpose of considering and, if thought
fit, approving with or without modification, an arrangement to be made between
the company and its members. The purpose of this arrangement is to effect
amalgamation with this company of (a) Green & Co. Limited ___address ;____
(b) White & Co. Limited ____address ____the wholly owned (subsidiaries
hereinafter collectively referred to as "the subsidiaries").
The terms of amalgamation
are hereinafter mentioned:
1. The subsidiaries presently
have very little activities as the present market for the electrical components
and mechanical and allied accessories manufactured by the subsidiaries
virtually have no demand and productions of both the subsidiaries are cut to
the minimum which will not be even 10 per cent of their rated capacity. The
Directors of the subsidiaries think that there would be little possibility of
marketing the products even the title manufactured by these subsidiaries and as
because demand pattern of such commodities now has completely changed, the
subsidiaries under the circumstances cannot be run without incurring heavy
losses. Retirement of workers and staff would cause considerable cash outgoings and the subsidiaries ill-afford
to raise such fund needed for the pay-off compensation to the staff to be
retrenched. The company will be definitely the main beneficiary as with some
addition and alteration and with the purchase of balancing equipment, the
company will be in a position to increase its own product range having current
market demand and to a great extent also may diversify the activities of the
company by introducing manufacture of new products in one of the subsidiaries.
2. The amalgamation of the
subsidiaries with this company will in the above sense definitely bring about
economy in production besides effecting substantial savings in the
administration and other expenses, as all the three companies will function
under one administrative set up. Moreover, this company having on the roll
sufficient number of technical personnel, selection and purchase of balancing
equipments is no problem and resultant benefit is that the substantial workers
and staff who, otherwise would have to be relieved of, could be fully utilised.
The acquisition of the undertakings of the subsidiaries by the company will
enable this company to expand its activities with least possible expenditure.
Some of the machinery and equipment used in the works of the subsidiaries being
old and obsolete required to be sold immediately and the company will have some
ready cash in hand in the process. Some of the properties belonging to the
subsidiaries are also surplus to requirement and these may be conveniently
disposed of and the resources may be used for the purchase of balancing
equipment needed for diversification of the products after the amalgamation as
envisaged has been put into effect.
3. The scheme of
amalgamation when sanctioned by High Court at Bombay the subsidiaries shall
stand dissolved as at Ist August, 1978. The amalgamation will involve no fresh
issue of capital and this company is the beneficial owner of the entire paid-up
share capital of each of the subsidiaries.
4. The subsidiaries'
registered offices are now housed at different places. Consequently as
subsequent to amalgamation, there would be only one registered office occupied
by the company, savings in rent will be quite considerable. Apart from all
these mentioned above, the proposed amalgamation will mean lesser number of
returns and formalities to be observed with the Registrar of Companies, lesser
clerical work involvement in such exercises, economy in audit fees, secretarial
expenses.
A copy of the proposed
scheme of arrangement which is common to both the subsidiaries is given
hereunder.
Notice of a Meeting of Shareholders
for approving scheme or
contract of transferring
shares
NOTICE
Notice is hereby given that an Extraordinary General Meeting of the Company will be held at the registered office of the Company at Anand 388001 on___the___2003 at __a.m./p.m. to consider and if thought fit to pass the following resolution as a Special Resolution with special majority:
"RESOLVED THAT pursuant
to section 395(l) of the Companies Act, 1956, consent of the Company be
obtained to transfer all the shares of the Company under the scheme or contract
to ABC Co. Ltd. except those already held by the said Company as per the
following terms and conditions:
1. Consideration of the
shares ......
2. Mode of such
consideration whether in cash or in kind and if in kind then ____shares of ABC Co. Ltd. will be allotted to
____shares held by each share holder as on ___2003."
"RESOLVED FURTHER THAT the Board of Directors
of the Company is authorised to do all acts and deeds as may deem fit for
implementation of the aforesaid transfer of shares to ABC Co. Ltd."
By Order of the Board
Secretary
Dated:
Registered Office
NOTES: 1.A member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory
Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of
the special business set out above is annexed hereto.
3.The circular containing
the offer or recommendation to the members by the directors of the company
along with prescribed information in Form No. 35A is enclosed for the perusal
of the members.
Explanatory Statements pursuant to section 173(2) of
the Companies Act, 1956
The Board of Directors of your Company at its meeting
held on ____2003 has approved a scheme or contract involving the transfer of
____equity shares of your Company being 90% of the total paid up equity share
capital to ABC Co. Ltd. This was done by your Board of Directors on the basis
of the offer made by ABC Co. Ltd. on ___2003. Under section 395(l) of the
Companies Act, 1956 your approval is required so as to allow the Transferee
Company to take up the shares of any dissenting shareholder. ABC Co. Ltd., the
Transferee Company is giving Rs.____ per share as the consideration for the
transfer. Your Board of Directors feels that this transfer will be beneficial
not only to the Company but also to all the shareholders of the Company whose
shares are being offered to be taken up by the Transfer Company.
None of the Directors is
concerned or interested in the aforesaid resolution except as shareholders.
Your Directors recommend the
passing of the aforesaid special resolution.
Notice to dissenting
shareholders
Registration No. of No.
if any, of
Transferee Company Transferor
Company
THE COMPANIES ACT, 1956
(Pursuant to section 395)
ABC & Company Ltd.
(hereinafter called 'the transferor company')
Notice by M/s. PQR &
Company Ltd. (hereinafter called 'the transferee company')
To
The dissenting member, Mr.
ABC ................
WHEREAS on the ____day of ____2003, the transferee company made an offer to all the holders of shares in the transferor company (state shortly the nature of offer); AND WHEREAS up to the ___day of____2003 being a date within four months of the date of the making thereof such offer was approved by the holders of not less than nine-tenths in value of the said 8 per cent preference shares other than shares already held at the date of the offer by or by a nominee for the transferee company or by its subsidiary.
NOW, THEREFORE, the
transferee company, in pursuance of the provisions of section 395(l) of the
Companies Act, 1956, hereby gives you notice that is desires to acquire the 8
per cent preference shares held by you in the transferor company.
And further take notice that
unless, upon application made to the Court by you the said Mr. ABC __on or
before the __day of____2003, being one month from the date of this notice, the
Court thinks fit to order otherwise, the transferee company will be entitled
and bound to acquire the 8 per cent preference shares held by you in the
transferor company on the terms of the abovementioned offer, approved by the
approving 8 per cent preference shareholders in the said company.
Sd/-
ABC
for PQR & Co. Ltd.
Secretary
Designation
Dated the ____2003
Sections 484-485-Voluntary winding up
A company may be wound up voluntarily if the company passes a Special Resolution that the company be wound up voluntarily without assigning any reason there for irrespective of the fact that the company is solvent and is capable of continuing its existence. No article of the company can prevent the exercise of this statutory right and this cannot be interfered with even by the High Court if no mala fide intention exists. British Water Gas Syndicate v. Notts. Delray Water Gas Co., (1889) WN 204.
Pursuant to section 488, prior to the proposal for the voluntary winding up of a company is put before the general members, the Directors of the company or the majority of the Directors (in case the company has more than two Directors) may at a meeting of the Board, make a declaration verified by an affidavit, to the effect that they have made a full enquiry into the affairs of' the company, and that, having done so, they have formed the opinion that the company has no debts or that it will be able to pay its debts in full within such period not exceeding three years from the commencement of the winding up as may be specified in the declaration.
The declaration of solvency
by the Directors will have to be delivered to the Registrar for registration
within five weeks immediately preceding the date of the passing of the
resolution for winding up.
There is no prescribed form
for making a declaration of solvency for the purpose of dcl1vcr1ng to the
Registrar. The declaration of the Directors should be accompanied by a copy of
the report of' the Auditors of the company, prepared, as far as circumstances
admit in accordance with the provisions of this Act, on the profit and loss
account of the company for the period commencing from the date up to which the
last such account was prepared and ending with the latest practicable date
immediately before making of the declaration, and the balance-sheet of
the company made out as on the last mentioned date and also embodies statement
of the company's assets and liabilities as at that date.
After delivering the
declaration to the Registrar of Companies declaring solvency of the company,
the Directors may then issue usual notice to the members convening a General
Meeting proposing to pass a resolution to wind up the company.
Proposal to pass special
resolution to wind up the company
Ss. 484-485-Notice
of General Meeting proposing to pass a special resolution to wind up the
company
B.K. & COMPANY LIMITED
Regd. Office:
NOTICE
Notice is hereby given that
an Extraordinary General Meeting of the members of B.K. & Company Ltd. will
be held at the registered office of the Company at ___on___the___2003 at__ a.m./p.m.
to consider and, if thought fit, to pass the following resolutions with or
without modification, as Special Resolutions:
"RESOLVED that having regard to the declaration made by the Board of Directors dated the ___2003 and delivered to the Registrar of Companies under section 488 of the Companies Act, 1956, stating that the Company would be able to pay its debts in full within a period of one year from the date of declaration hereof, the Company having registered office at __be wound up voluntarily, pursuant to section 484(i)(b) of the said Act.
RESOLVED FURTHER than Mr. PXR of ___be and is hereby
appointed as a Liquidator of the Company pursuant to the provisions of section
490 of the Companies Act, 1956, at a remuneration of Rs. 5,000/- per
month in addition to his costs, charges and expenses".
BY ORDER OF THE BOARD
(A B C)
Secretary.
Dated ___2003
NOTES: 1.A member entitled
to attend and vote at the meeting is entitled to appoint a proxy to attend and
vote instead of himself and the proxy need not be a member of the company.
2.The relative Explanatory Statement, pursuant to section 173(2) of the Companies Act, 1956, in respect of the special business set out above is annexed hereto.
Explanatory Statement pursuant to section 173(2) of
the Act
The company was formed for the purpose of collection and processing of grain and distribution thereof to the various dealers. Initially, the company business was quite remunerative and earned adequate profits on capital invested. The trading in grain has been assumed by the State Government to the exclusion of any dealing by a private concern. As the purpose for which the company was formed and earned substantial profits for few years, has become unworkable by the operation of law of the country, your Directors feel that there is no alternative but to put the company into voluntary winding up, realise the assets thereof and distribute the proceeds to the members.
Your Board of Directors made
a pragmatic assessment of the affairs of the company and have reasonable ground
to form the opinion that the company will be able to pay its debts in full
within period of one year after realising the assets belonging to the company.
On the basis of the
assessment made by your Directors, the Board of Directors passed a and that
such declaration has been delivered to the Registrar of Companies, accompanied
by a report of the Auditors of the company, as required under section 488 of
the Companies Act, 1956.
Your approval is also sought for the resolution appointing Mr. PXR of ___as a Liquidator of your company at a remuneration of Rs. 5,000/- per month in addition to out-of-pocket expenses.
The above mentioned
declaration of solvency is available for inspection at the registered office of
your company during business hours on any working day.
None of the Directors of
your company is interested in the proposed Special Resolution, except to the
extent of the holding of shares by them and they recommend your acceptance of
the proposed resolutions in the interest of the members in general.
Section 485-Publication of resolution to wind up voluntarily
When a company has passed a
resolution for voluntary winding up, it shall, within fourteen days of the
passing of the resolution, give notice of the resolution by advertisement in
the Official Gazette, and also in some newspaper circulating in the districts
where the registered office of the company is situate.
Notice of resolution for
Voluntary Winding up
B.K. & COMPANY LIMITED
Regd. Office:
NOTICE
Notice is hereby given for general information that the members of the B.K. & Company Limited at an Extraordinary General Meeting of the Company held on___the___2003 at its registered office, have passed the following Special Resolution to wind up the above Company voluntarily.
"RESOLVED
that (give here the whole
resolution)".
BY ORDER OF THE BOARD
(A B C)
Director.
Dated the ___2003
Section 493-Notice of appointment of Liquidator to be given to
the
Registrar of Companies
The company shall give
notice to the Registrar of Companies of the appointment of Liquidator or
Liquidators made by it under section 490 of the Companies Act, 1956, of every
vacancy occurring in the office of Liquidator, and the name of the Liquidator
or Liquidators appointed to fill every such vacancy under section 492.
The notice, as mentioned
above, should be given by the company within ten days of appointment or change
thereof.
The notice, as referred to
here, should be given to the Registrar of Companies. There is no prescribed
form and as such a general form of notice may be adopted.
On the appointment of a
Liquidator, all the powers of the Board of Directors and of the Managing or
whole-time Directors and Manager, if there be any of these, shall cease,
except for the purpose of giving notice of appointment thereof to the Registrar
in pursuance of section 493 or in so far as the company in General Meeting or
the Liquidator may sanction the continuance thereof.
Appointment/filling up of the vacancy in the office of liquidator in the event of a members
voluntary winding up
Registration
Nominal
No.
of company____ capital
Rs.__
THE COMPANIES ACT, 1956
Notice of
appointment/filling up of the vacancy in the office of Liquidator in the event
of a member's voluntary winding up
(Pursuant to section 493)
Name of the company :
B.K. & Company Limited
Presented by : ABC, Director
To
The Registrar of Companies,
At a General Meeting of the
members of the said company, duly convened and held at the registered office of
the company at __on the ___2003, the following resolution was duly passed:
"RESOLVED FURTHER that Mr. PXR of ____be and is
hereby appointed as a Liquidator of the Company pursuant to the provisions of
section 490 of the Companies Act, 1956, at a remuneration of Rs.5,000/-
per month in addition to his costs, charges and expenses."
Sd/-
ABC
Signature
Director
Designation
Dated the ___2003
Notice by a Liquidator to Income-tax Officer
Pursuant to section 178 of
the Income-tax Act, 1961, every person who has been appointed as the
Liquidator of a company, shall within thirty days after he has become such
Liquidator, give notice of his appointment as such to the Income-tax
Officer who is entitled to assess the income of the company.
There is no specific form
prescribed under the Income-tax Act for the purpose of the notice and may
be in form of a letter.
Notice to Income-tax
Officer by a Liquidator
Address......................
......................
Dated the ……….2003
To
The
Income-tax Officer,
Companies
District No ................
New
Delhi.
Dear Sir,
Permanent A/c. no ................
M/s. B.K. & Company Limited.
This is to notify you
pursuant to section 178 of the Income-tax Act, 1961, that I have been
appointed a Liquidator of M/s. B.K. & Company Limited at the Extraordinary
General Meeting of the aforesaid company held on ____the___2003 to hold office
until winding up of the company.
Yours faithfully
(P X R)
Section 496-Duty
of a Liquidator to call a General Meeting at the end of each year
In the event of the winding
up continuing for more than one year, the Liquidator shall call a General
Meeting of the company at the end of the first year from the commencement of
the winding up and at the end of each succeeding year, or as soon thereafter as
may be convenient within three months from the end of the year or such longer
period as the Central Government may allow. Although there is no prescribed
period in regard to the length of notice, the length prescribed under section
171 should be followed in the case of General Meetings pursuant to sections
496, 497/ 509 of the Companies Act. 1956.
A form of notice for this
purpose, namely, Form No. 155, has been prescribed under Rule 329 of the
Companies (Court) Rules, 1959.
The notice is applicable
either for annual meeting or final meeting of the winding up process. The
Liquidator is to lay before the meeting an account of his acts and dealings and
of the conduct of the winding up during the preceding year 18 together with a
statement in the prescribed form and containing the prescribed particulars
Notice convening a General
Meeting by the Liquidator
THE COMPANIES (COURT) RULES, 1959.
FORM NO. 155
(See Rule 329)
Members'/Creditors'
voluntary winding up
Name of company: B.K. &
Company Limited
NOTICE CONVENING (FINAL)
MEETING
Notice is hereby given in pursuance of section 497/509 of the Companies Act, 1956, that a General Meeting of the members of the above named Company will be held at___on___the___2003 at ___ a.m./p.m. (and a meeting of the creditors will be held at ___on__the___2003 at__ a.m./p.m.) for the purpose of having an account laid before them showing the manner in which the winding up has been conducted and the property of the Company disposed of and of hearing any explanation that may be given by the Liquidator and also of determining by a Special Resolution of the Company/by resolution of the committee of inspection/by the creditors, the manner in which the books, accounts and documents of the Company and of the Liquidator shall be disposed of.
Sd/- P X R
Signature of the Liquidator
Dated the ___2003
Section 501-Notice of resolution passed by creditors' meeting
to be
given to the Registrar
Notice of any resolution
passed at a creditor's meeting, in pursuance of section 500 of the Act, shall
be given by the company to the Registrar within ten days of the passing
thereof. No prescribed form is there now for the purpose of making such
notification, but any general form may be adopted.
Registration No. Nominal
of company ____ capital:
Rs _____
THE COMPANIES ACT, 1956
Notice of resolutions passed
by creditors' meeting
(Pursuant to section 501)
Name
of company : B.K. & Company Limited
Presented
by : ____
To
The
Registrar of Companies,
Resolution(s) passed for voluntary winding up in
pursuance of section 500:
(i) Date of despatch of notice specifying the
intention to propose the resolution(s)
(ii) Passed on ...............
(iii) At a meeting of the creditors of the said
company, duly convened, and held at ___in the town of ___on the ____day of
___2003___, the following resolution(s) was/were passed:
"RESOLVED that
(1)
(2)
..................
Signature
...................
Designation
Dated the ____2003
Section 547-Notification that a company is in liquidation
Where a company is being
wound up, whether by or under the supervision of the Court or voluntarily,
every notice, order for goods or business letter issued by or on behalf of the
company or a Liquidator of the company, or a Receiver or Manager of the
property of the company shall contain a statement that the company is being
wound up.
No particular form or
wording has been prescribed under this section and a simple statement 'in
liquidation' used in all the documents, issued by the company, is sufficient
compliance of this provision.
Striking out the name from
register-Defunct Companies
NOTICE
In the matter of the
Companies Act, 1956
AND
In the matter of M/s. AB
& XY (P) Ltd.
It is hereby notified for the information of all those concerned that the undersigned has requested the Registrar of Companies, Tamil Nadu, Chennai to initiate action under Section 560 of the Companies Act, 1956 in respect of M/s. AB & XY (P) Ltd., which is having its registered office at ___Madras with a view to strike off the name of the Company from the Register. If anybody has objections to the proposed course of action, they are requested to state the same and the reasons thereof to the Registrar of Companies, Tamil Nadu, Chennai within ____days of the publication of this Notice.
Chairman & Managing Director
M/s. AB & XY (P) LTD.,
Anand 388001
Sections 592-602-Foreign company
Foreign companies have been
defined under section 591 as follows:
(a)companies incorporated
outside India which, after the commencement of the Companies Act, 1956,
established a place of business within India; and
(b)Companies incorporated outside India which have, before the commencement of this Act, established a place of business within India and continue to have an established place of business within India at the commencement of the Companies Act.
Section 594-Notirication by a foreign company in regard to
place of business etc. in India
Sub-section (3) of
section 594 prescribed for notification to be made by every foreign company to
the Registrar of Companies of both National Capital Territory of Delhi and the
place where the principal office is situate, along with three copies of the
list (with balance sheet/accounts etc.) in the prescribed form of all places of
business established by the company in India as at the date with reference to
which the balance-sheet referred to above. The notification, as above, is
to be made in the prescribed form, namely, Form No. 52 39t of the Companies
(Central Government's) General Rules & Forms, 1956.
List of places of business
1. File a list of places of
business established by a foreign company in India in Fon-n No. 52t, in
triplicate, with the Registrar of Companies, New Delhi, and also with the
Registrar of the State in which the principal place of business of the foreign
company is situate within nine months from the date of the close of its
financial year4o.
2. File along with this
list, three copies of the balance-sheet of the company and also of the
accounts of its Indian business.
3. Follow the notification
given by the Central Government while preparing the balance-sheet and the
profit and loss account of the company for the specified exceptions and
modifications.
4. If the Indian business
accounts are not ready, then send along with the list three copies of the world
balance-sheet and file the Indian business accounts thereafter as soon as
possible.
5. If you are unable to file
list with the Registrar within nine months as mentioned in item (1) above, then
make an application to the Registrar giving full reasons of the delay made and
the Registrar, if satisfied, will grant an extension of not more than three
months' time and then file the list within that extended time4'.
6. Pay the filing fee of Rs.
5,0001- only for filing with the Registrar of Companies, New Delhi, in
cash or into the public account of India at any treasury or into the Reserve
Bank of India or any office of the State Bank of India or any
subsidiary thereof acting as
an agent of the Reserve Bank of India for credit under the following head,
namely:
|
Major Head |
Alphanumeric Code Description |
Account Code |
Serial Code |
Source Category Check Digit |
|
(1) |
(2) |
(3) |
(4) |
(5) |
|
1475 |
Other General Eco- nomic Service Regula tion of Joint Stock Companies |
147500105 |
14750006 |
113 |
|
1475-00-105 |
(a)Registration fee (b) Filing fees (c) Inspection and copying fees (d) Other fees |
14750010599 14750010598 14750010597 14750010596 |
14750032 14750033 14750034 14750035 |
114 117 112 119 |
7. Attach to the list a
receipted treasury challan evidencing the payment of the requisite fee, as
mentioned above.
Central Government's general policy as to foreign
companies
Power has been given to the
Central Government under the proviso to section 594(l) to exempt any foreign
company or class of companies, by a notification in the gazette, from the
statutory requirements referred to above, in such manner as may be specified in
the notification. In exercise of the said power, the following exemptions,
modifications have already been granted by the Central Government to all
foreign companies.
In exercise of the powers
conferred by the proviso to sub-section (1) of section 594 of the
Companies Act, 1956, the Central Government has directed that the requirements
of clause (a) of sub-section (1) shall apply to foreign company having a
share capital subject to the exceptions and modifications specified below,
namely,
(i)A foreign company shall,
in respect of its Indian business, submit to the appropriate Registrar, in
triplicate, its balance sheet and profit and loss account in such form,
containing such particulars and including or having annexed or attached thereto
such documents as under the provisions of the Act it would, if it had been a
company within the meaning of the Act, have been required to make out and lay
before the company in General Meeting.
(ii)The working capital
earmarked for its branch, if any, shall be shown in the balance-sheet.
(iii) The profit and loss
account in respect of its Indian business shall disclose the net profit or loss
for the year transferred to its principal office in the country of its
incorporation.
(iv)The balance-sheet
and profit and loss account of the Indian business of the foreign company in
terms of clause (i) shall be audited by such person or persons and in such
manner as laid down in the Act. In regard to the said balance-sheet and
profit and loss account relating to a period on or before the 3 1 st day of
March, 1958, it shall be deemed to be sufficient compliance if such documents
are audited by Auditors of the foreign company in the country of its
incorporation.
(v)The foreign company shall also submit to the appropriate
Registrar three copies of the authenticated balance-sheet and profit and
loss account (including documents relating to every subsidiary of the foreign
company) as submitted by it to the prescribed authority in the country of its
incorporation under the provisions of the law in that country.
(vi)The Government shall
have authority, when there is difficulty in reconciling the balance-sheet
and profit and loss account of a foreign company submitted in accordance with
clause (i) with the balance-sheet and profit and loss account filed by
that company in the country of its incorporation, to seek clarification or
demand the making of the balance-sheet and profit and loss account filed
in that country, as far as practicable, in such form as it would, if it had
been a company within the meaning of the Act, have been required to make out
and lay before the company in a General Meeting, and the foreign company shall
be bound to make such clarification or comply with such demand, as the case may
be.
(vii)In regard to a foreign
shipping or an airlines company, it shall be deemed to be sufficient compliance
of the provisions of Part II of Schedule VI to the Act, if the profit and loss
accounts of such companies prepared in terms of clause (1) disclose under broad
heads the items of indirect expenditure (relating to an entire voyage or flight
which cannot be directly charged against the Indian business of such companies)
allocated on a reasonable basis.
(ix) It shall be deemed
sufficient compliance of the provisions of section 594 of the Act, if the
balance-sheet in respect of the period ending on or before the 31st day
of December, 1956, are filed in the manner laid down in sub-section (3)
of section 277 of the Indian Companies Act, 1913 (VII of 1913).
(x)In the case of a foreign
company which, if incorporated under the Act would have been deemed to be a
private company within the meaning of clause (iii) of sub-section (1) of
section 3 of the Act, no person other than a member of the company concerned
shall be entitled to inspect or obtain copies of
(a)the profit and loss
account of its Indian business submitted to the appropriate Registrar in terms
of clause (i) hereof;
(b) the profit and loss
account submitted to the appropriate Registrar in terms of clause (vi)
hereof43.
company in India
THE COMPANIES ACT, 1956
FORM NO. 52
Registration No .................
Nominal capital Rs ...............
Notice of (A) alteration in
the names and addresses of persons resident in India authorised to accept
service on behalf of a foreign company, (B) Alteration in the address of
principal place of business in India of a foreign company, (C) List of places
of business established by a foreign company in India, (D) Cessation to have a
place of business in India.
[Pursuant to sections
593(d), (e), 594(3), 597(3)]
Name of the company ...................
Country of incorporation ...............
The above named foreign company, having established an office of business in India at____ hereby gives notice:
(A)of the alteration in the
names and addresses of persons resident in India authorised to accept service
on behalf of the company:
___________________________________________________________________________________
Present
name and Usual
residential Remarks
as to
surname
in full address alteration
(give date)
___________________________________________________________________________________
(1) (2) (3)
___________________________________________________________________________________
(B)of the alteration in the
address of principal place of business of the company in India
The principal place of
business in India was shifted from ____to___ with effect from
(C) of the places of business in India as at
______(1)
1 . ................
2 . ................
3 . .................
(D) (1) that it ceased to have a place(s) of business
in India at the following places since ...............
(2) that the company is not maintaining place of business at
any other place in India.
Signature
...................
Name
........................
(In Block Capitals)
Designation ...............
Dated the ___day of___2003
NOTES: 1.The date up to
which the balance-sheet and profit and loss account required to be
delivered to the Registrar of Companies pursuant to section 594(l) of the
Companies Act, 1956, are made out.
2.Portion not relevant
should be deleted.
3.Signature or signatures of
one or more persons authorised under section 592(l)(d) of the Companies Act,
1956, or of some person in India duly authorised by the company".
Section 597-Office where documents to be delivered by a
foreign
company and notice on ceasing to have a place of business in
India
Any document which any
foreign company is required to deliver to the Registrar shall be delivered to
the Registrar having jurisdiction over National Capital Territory of Delhi, and
references to the Registrar in regard to a foreign company shall always be
construed 8.Reoistrar of Companies having jurisdiction over National Capital
Territory of Delhi and also the Registrar of the State in which the principal
place of business of the company is situated. Documents to be filed with both
the Registrars, as mentioned above, by a foreign company will require filing
fee only to be given to the Registrar of Companies, National Capital Territory
of Delhi.
If any foreign company
ceases to have a place of business in India, it shall forthwith give notice of
the fact to the Registrar and as from the date on which notice is given, the
obligation of the company to deliver the document to the Registrar shall cease,
provided it has no other place of business in India.
S. 597-Notice by a foreign
company on ceasing to have place of business in India in Form No. 52 of the
Companies (Central Government's) General Rules and Forms, 1956
For text of the form see
under Serial No. 203
Section 640B-Notice to be published in newspapers while making
application to the Central Government under certain sections
Every company before making
an application to the Central Government under sections 259, 268, 269, 310,
311. 408 or 409 of the Companies Act, 1956, in the prescribed forms, shall
issue by or on behalf of the company a general notice to the members thereof by
newspaper advertisement indicating the nature of the application proposed to be
made.
Such notice shall be
published at least once in a vernacular newspaper in the principal language of
the district in which the registered office of the company is situated and
circulating in that district, and at least once in English in an English
newspaper circulating in that district.
Copies of the notices,
together with a certificate by the company as to the due publication thereof,
shall be attached to the application under the aforesaid sections. Thus,
general notice is to be published before the following applications to the
Central Government are made:
1. Where the number of
Directors of a public company or its subsidiary is increased beyond twelve
Directors
2. Where any amendment is to be made in the terms and conditions of the appointment of Managing or Whole-time Director or non-rotational Director of a public company or its subsidiary
3. Where appointment of Managing or Whole-time
Director is to be made by any public company or its subsidiary
4. Where the remuneration of Directors including
Managing/Whole-time Directors of a public company or its subsidiary is
increased
5. Where any increase in
remuneration is made on the re-appointment or appointment of a Managing or
Whole-time Director of a public company or its subsidiary 49
6. Where the Central Government appoints Directors of a company on the application of the members of the company to prevent oppression or mismanagement 50 .
7. Where the Central
Government prevents the company from giving effect to the change in the Board
of Directors of a company on a complaint made to it by any Managing Director or any other Director
of that company
Complete satisfaction of charge created by a foreign company
Ss. 600/138-Notice
of complete satisfaction of charge created by a foreign company
No. of Company
FORM
NO. 60
THE
COMPANIES ACT, 1956
Memorandum
of Complete Satisfaction of Charge Created by a Foreign Company
(Pursuant
to Section 600 read with Section 138)
Rushabh Menagement &
Infosys Inc., a Company incorporated in the State of California in United
States of America and which has established a place of business/principal place
of business in India at Anand hereby gives notice that the registered____ charge
being which particulars were registered with the Registrar of___ Companies on
the___ day of 2003 ___was
satisfied in full on ___the___ day of___2003, the debts for which the charge
was given, having been paid or satisfied.
In witness whereof the
common seal of the Company was herewith affixed___ this___ day of ____ 2003.
Signature or signatures of
one or more persons authorised under Section 592(l)(d) of the Companies Act,
1956, or of some other person in India, duly authorised by the Company.
Dated Notice___ day of ____ 2003.
Increase of number of directors beyond twelve
PUBLIC NOTICE
RUSHABH MANEGEMENT & INFOSYS
Regd. Office: 301,Pitru
Ashirwad
Anand 388001 .
NOTICE
ABC Ltd.
Registered Office ...................
Notice pursuant to section 640B of the Companies Act, 1956
Notice is hereby given that
the Company intends to apply to the Central Government for its approval under
section 259 of the Companies Act, 1956, for increasing the number of its
Directors, as provided in article ___of the Articles of Association of the
company, from 12 to 16.
BY ORDER OF THE BOARD
(X Y Z)
Secretary.
Dated the .. 2003