Saturday, May 20, 2017

Dibrugarh University Solved Question Papers: Company Law (May' 2016)

2016
(May) COMMERCE
(General/Speciality)
Course: 402
(Company Law)
Time: 3 hours
The figures in the margin indicate full marks for the questions
(NEW COURSE)
Full Marks: 80
Pass Marks: 24
1. Fill in the blanks:                                                          1x4=4
a)      The prospectus of a company must be issued within 90 days of its registration.
b)      The gap between two annual general meetings must, not be more than 15 months.
c)       According to Section 165 of the Companies Act, no person can be a director in more than 20 companies.
d)      A person may cease to be a member of a company when share warrant are issued in exchange of the fully paid-up share.
2. Write True or False:                                                    1x4=4
a)      It is compulsory for every company to have its Articles and file the same with Registrar of Company for registration.                                 False
b)      A member of a company must be a shareholder of the company.             False

c)       Proxies are not to be included while counting the quorum of a meeting of a company.   True
d)      The Maximum number of directors in a public as well as private company is twenty.        False, it is 15
3. Write briefly (any four):                                          4x4=16
a) Statutory Company: The statutory companies are also known as statutory corporations or public corporations, these are actually public bodies established and operated by Statute. For E.g. RBI (reserve bank of india), State Bank of India, Life Insurance Corporation, Unit Trust of India, Employees State Insurance Corporation, Oil and Natural Gas Corporation etc. are some examples of statutory corporations. The features of statutory corporation are as follows:-
(1) Management: Statutory corporations are managed by the Board of Directors, appointed by the government.
(2) Accountability: Statutory corporation is accountable to public & parliament. Hence it is account and audited by the Comptroller & Auditor General of India (CAG). This ensures public accountability.
(3) Appointment: They can freely recruit people and can give promotions and transfers to any employee according to the company requirement.
(4) No Interference: Statutory corporation can have its own pattern. There is no political interference in day to day working of the corporation.
(5) Objectives: It works on profit objective and as such its activities are commercial in nature.
b) Certificate of Incorporation: Certificate of Incorporation: When the registrar; after scrutiny of document feels satisfaction regarding formation formalities, he may retain all the relevant documents with him and he shall issue a Certificate of Incorporation to the company. The promoter delivers the following documents to the registrar:
a)      Application for availability of name
b)      Memorandum of Association
c)       Articles of Association
d)      Copy of proposed agreement
e)      Statement on nominal capital
f)       Address of the registered office
g)      List of directors and their consent
h)      Undertaking to take up qualification shares
i)        Statutory declaration
When the promoter duly file all the documents relating for incorporation to the registrar, the registrar then will scrutinize these documents from legal point of view. If all the documents found correct, he may issue a certificate of incorporation, but if finds any minor defect in the documents, then he may require for rectification. But if there is no defect, then he may be compelled to register if he denies.
c) Purpose of Memorandum of Association: Purpose and Importance of MOA are outlined below:
a) It is the foundation of a business. It shows the capacity to contract of a company.
b) It is constitution of a company which relates with the outside world. No company is allowed to temper with its contents without the sanction of central government or court of law.
c) Any act of the company outside the scope of activities as laid down in the memorandum is said to be ultra vires and non binding on it.
d) Every member shall be bound to comply with the provisions contained in the memorandum. In case of non-compliance, the company may sue a member.
d) Annual General Meeting: Every company must in each year hold an annual general meeting. Not more than 15 months must elapse between two annual general meetings. However, a company may hold its first annual general meeting within 9 months from the close of 1st financial year. In such a case, it need not hold any annual general meeting in the year of its incorporation as well as in the following year only. A notice of at least 21 days before the meeting must be given to members unless consent is accorded to a shorter notice by members, holding not less than 95% of voting rights in the company. The notice must state that the meeting is an annual general meeting. The time, date and place of the meeting must be mentioned in the notice. The AGM must be held on a working day during business hours at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situated. The Central Government may, however, exempt any class of companies from the above provisions.
e) Woman director: As per Sec. 149(1) of the Companies Act, 2013, the following companies shall appoint atleast one woman director:
1) Every listed company.
2) Every other public companies having a paid share capital of Rs. 100 crores or more or turnover of Rs. 300 crores or more.
A period of six months from the date of company’s incorporation has been provided to enable the companies incorporated under Companies Act, 2013 to comply with this requirement. Therefore, the existing companies has to comply the above requirements within one year and new companies incorporated under the new companies act has to comply within 6 months from the date of its incorporation.
Further if there is any intermittent vacancy of a woman director then it shall be filled up by the board of directors within 3 months from the date of such vacancy or not later than immediate next board meeting, whichever is later. This has been a welcome move.
f) Government company [Sec 2(45)] - A Government company means any company in which not less than 51 % of the paid-up share capital is held by-
a.       the Central government
b.      any State government or governments
c.       partly by the Central government and partly by one or more State governments.
4. What do you mean by Articles of Association? Distinguish between Memorandum of Association and Articles of Association.                                       4+10=14
Ans: Articles of Association
The Articles contain rules and regulations for the internal management of the company. They are framed with the object of carrying out the aims and object of the memorandum of association and also to monitor that the same are carried as prescribed.
Section 2 (5) of the Companies Act, 2013 defines articles as “Articles means Articles of Association of a company as originally framed or altered from time to time in pursuance of any previous law or of this act including so far as they apply to the company the regulations contain as the case may be in Table A to Schedule I of this act”
The Model contents of the Article of association are as under:
a)      the business of the company;
b)      the amount of capital issued and the classes of shares into which the capital is divided; the increase and reduction of the share capital;
c)       the rights of each class of shareholders and the procedure for variation of their rights;
d)      the execution or adoption of a preliminary agreement, if any;
e)      the allotment of share; calls and forfeiture of shares for non – payment of calls;
f)       transfer and transmission of shares;
g)      company’s lien on shares;
h)      exercise of borrowing powers including issues of debentures;
i)        general meeting, notices, quorum, proxy, poll, voting, resolution, minutes; etc.
The difference between Memorandum of Association & Article of Association is given here:
BASIS OF DISTINCTION
MEMORANDUM OF ASSOCIATION
ARTICLE OF ASSOCIATION
MEANING
It is a charter of a company .It sets the constitution .It defines limits ,powers and objects of the company
It contains rules and regulation for the internal management of the company
OBJECTIVES
It governs relationship with the external world i.e. creditors, sellers, buyers & debtors
It governs internal relationship between the members of the company.
STATUS
It is the primary document. It is the foundation of the company.
It is the secondary document & it is based on the memorandum of association.
COMPULSION
It is a compulsory document for all the companies
It is compulsory for private companies, unlimited companies and companies limited by guarantee.
ALTERATION
It is an unalterable document. Alteration can only be done by the permission of court
It can be stitched according to the management a resolution is to be passed and it is within the limits of Memorandum of Association
Ultra Vires Actions
It lays down the boundaries beyond which a company cannot work. All such acts are illegal and they are called ultra vires acts.
The articles are controlled by the memorandum Within it the shareholders and the directors may make such regulations as they feel fit for internal management.

Or
Explain the legal provisions in relation to prospectus of a company.                                       14
Ans: Prospectus: Section 2(70) of the Companies Act, 2013 defines a prospectus as ““A prospectus means Any documents described or issued as a prospectus and includes any notices, circular, advertisement, or other documents inviting deposit fro the public or documents inviting offer from the public for the subscription of shares or debentures in a company.” A prospectus also includes shelf prospectus and red herring prospectus. A prospectus is not merely an advertisement. A document shall be called a prospectus if it satisfy two things:
a)      It invites subscription to shares or debentures or invites deposits.
b)      The aforesaid invitation is made to the public.
Contents of a prospectus:
a)      Address of the registered office of the company.
b)      Name and address of company secretary, auditors, bankers, underwriters etc.
c)       Dates of the opening and closing of the issue.
d)      Declaration about the issue of allotment letters and refunds within the prescribed time.
e)      A statement by the board of directors about the separate bank account where all monies received out of shares issued are to be transferred.
f)       Details about underwriting of the issue.
g)      Consent of directors, auditors, bankers to the issue, expert’s opinion if any.
h)      The authority for the issue and the details of the resolution passed therefore.
i)        Procedure and time schedule for allotment and issue of securities.
j)        Capital structure of the company.
Legal requirement regarding issue of prospectus: (Sec. 26 of the Companies Act, 2013)
The Companies Act has defined some legal requirements about the issue and registration of a prospectus. The issue of the prospectus would be deemed to be legal only if the requirements are met.
1.      Issue after the incorporation: As a rule, the prospectus of a company can only be issued after its incorporation. A prospectus issued by, or on behalf of a company, or in relation to an intended company, shall be dated, and that date shall be taken as the date of publication of the prospectus.
2.       Registration of prospectus: it is mandatory to get the prospectus registered with the Registrar of Companies before it is issued to the public. The procedure of getting the prospectus registered  is as under:
a.      A copy of the prospectus, duly signed by every person who is named therein as a director or a proposed director of the company must be filed with Registrar of Companies before the prospectus is issued to the public.
b.      The following document must be attached thereto:
(i)     Consent to the issue of the prospectus required under any person as an expert confirming his written consent to the issue thereof, and that he has not withdrawn his consent as aforesaid appears in the prospectus.
(ii)   Copies of all contracts entered into with respect to the appointment of the managing director, directors and other officers of the company must also be filed with Registrar.
(iii) If the auditor or accountant of the company has made any adjustments in the company’s account, the said adjustments and the reasons thereof must be filed with the documents.
(iv)  There must be a copy of the application which is to be filled for the issue of the company’s shares and debentures attached with the prospectus.
(v)    The prospectus must have the written consent of all the persons who have been named as auditors, solicitors, bankers, brokers, etc.
c.       Every prospectus must have, on the face of it, a statement that:
(i)     A copy of the prospectus has been delivered to the Registrar for registration.
(ii)   Specifies that any documents required to be endorsed by this section have been delivered to the Registrar.
d.      A copy of the prospectus must be filed with the Registrar of Companies.
e.      According to the Section 26, no prospectus shall be issued more than ninety days after the date on which a copy thereof is delivered for registration.
If a prospectus issued in contravention of the above –stated provisions, then the company and every person who knows a party to the issue of the prospectus shall be punishable with a fine.
5. Define member. In what ways may a person become a member of a company? Discuss.          4+10=14
Ans: Who is a Member of Company?
The members of a company are the persons who collectively constitute the company as a corporate entity. Section 2(55) of the companies Act, 2013 defines a member as:
a)      The subscription to MOA of a company shall be deemed to have agreed to become members of the company and on its registration, shall be entered as members in its register of members.
b)      Every other person who agrees in writing to become a member of a company and whose name is entered in the register of members shall be a member.
c)       Every person holding equity share of a company and who name is entered ass beneficial owner in the records of the depository shall be deemed to be the member of the company.
What are the modes of acquiring the Membership?
A person may become a member or shareholder of the company in any one of the following ways:-
a)      By subscribing to the Memorandum of Association: The subscriber to the Memorandum of a company are deemed to have agreed to become a member of the company and on the registration of the company their names are entered as members on the register of members
b)      By agreeing to take qualification Shares: According to the section 266 directors of the company on delivering to registrar a written undertaking to take their qualification shares and to pay for them become the members of the company and they are in same position as if they were subscribers to the Memorandum.
c)       By transfer of shares: Shares in a company are movable property and are transferable in the same way as provided in the Articles of the company. Thus one person possesses the right to transfer his shares to another person. On the registration of transfer the transferee becomes the member of the company.
d)      By application and allotment of shares: A person may become a member of a company by an application for shares to the formal acceptance by the company. On valid allotment, the name of the shareholder is entered in the register of members
e)      By succession: On the basis of the succession certificate the legal heirs of the deceased member/shareholder get the right to be a member of the company. The company on this basis enters their name in the register of members.
f)       By estoppel or acquiescence: A person who knowingly permits entering his name in the register of members, becomes a member by estoppel or acquiescence.
Or
Define Company Secretary. Explain the qualification prescribed for appointment of a company secretary. 2+12=14

Ans: Definition and qualification of a Company Secretary:
Company Secretary Appointment and his Rights and Obligations needs to understand the definitions and as per sec. 2(24) of Companies Act 2013, Company Secretary means a Company Secretary define in sec. 2(1)(c) of the Company Secretaries Act 1980. As per this clause, Company Secretary means a person who is a member of Institute of Company Secretary of India. Company Secretary is managerial personnel in a private sector company and in a public sector company, a Company Secretary is a person who can represent his company before any quasi-judicial body in relation to any legal dispute and other legal litigation.
To be qualified as a company secretary, one must clear the:
1.       Company Secretary Executive level programme and Professional level programme.
2.       Must have training certificates which includes student induction programme, executive development programme, professional development programmed and long term internship with specified cs entity.
However to apply for the above programmes, one must:
(a)    Be a graduate from any recognized university or institution.
(b)   Should not be less than 17 years of age.
Thus, a company secretary should be a member of the institute of companies secretaries of India.

6. Discuss the requisites of a valid meeting of a company.                                           14
Ans: Requisites of a Valid Meeting
If the business transacted at a meeting is to be valid and legally binding, the meeting itself must be validly held. A meeting will be considered to be validly held, if:
a)      It is properly convened by proper authority.
b)      Proper notice must be served. (Sec. 101 and Sec. 102 of the Companies Act, 2013)
c)       Proper quorum must be present in the meeting. (Sec. 103 of the Companies Act, 2013)
d)      Proper chairman must preside the meeting. (Sec. 104 of the Companies Act, 2013)
e)      Business must be validly transacted at the meeting.
f)       Proper minutes of the meeting must be prepared. (Sec. 118 and 119 of the Companies Act, 2013)
Proper Authority to Convene Meeting: A meeting must be convened or called by a proper authority. Otherwise it will not be a valid meeting. The proper authority to convene general meetings of a company is the Board of Directors. The decision to convene a general meeting and issue notice for the same must be taken by a resolution passed at a validly held Board meeting.
Notice of Meetings: A meeting in order to be valid must be convened by a proper notice issued by the proper authority. It means that the notice convening the meeting be properly drafted according to the Act and the rules, and must be served on all members who are entitled to attend and vote at the meeting. For general meeting of any kind at least 21days notice must be given to members. A shorter notice for Annual General Meeting will be valid, if all members entitled to vote give their consent. The number of days in each case shall be clear days, i.e. the days must be calculated excluding the day on which the notice is issued, a day or so for postal transit, and the day on which the meeting is to he held. Every notice of meeting of a company must specify the place and the day and hour of the meeting, and shall contain a statement of the business to be transacted thereat.
Quorum of Meetings: Quorum is the minimum number of members who must be present at a meeting as required by the rules. Any business transacted at a meeting without a quorum is invalid. The main purpose of having a quorum is to avoid decisions being taken at a meeting by a small minority which may be found to be unacceptable to the vast majority of members. The number constituting a quorum at any company meeting is usually laid down in the Articles of Association. In the absence of any provision in the Articles, the provisions as to quorum laid down in the Companies Act, 2013 (under Sec.103) will apply. Sec. 103 of Companies Act provides that the quorum for general meetings of shareholders shall be five members personally present in case of a public company if the number of members as on the date of meeting is upto 1000, 15 quorum if number of members as on the date of meeting is more than 1000 but upto 5000 and if number of member exceeds 5000 than 30 quorum is required; and two members personally present for any private company or articles may provide otherwise.
Chairman of a Meeting: ‘Chairman’ is the person who has been designated or elected to preside over and conduct the proceedings of a meeting. He is the chief authority in the conduct and control of the meeting.
Agenda of Meetings: The word ‘agenda’ literally means ‘things to be done’. It refers to the programme of business to be transacted at a meeting. Agenda is essential for the systematic transaction of the business of a meeting in the proper order of importance. It is customary for all organisations to send an agenda along with the notice of a meeting to all members. The business of the meeting must be conducted in the same order in which the items are placed in the agenda and the order can be varied only with the consent of the meeting.
Minute: Minute of a meeting contains a fair and correct summary of the proceedings of a meeting. Minutes must be prepared and signed within 30 days of the conclusion of the meeting. The minute books of meetings must be kept at the registered office of the company or at such other place as may be approved by the board.
Proxy: The term ‘proxy’ is used to refer to the person who is nominated by a shareholder to represent him at a general meeting of the company. It also refers to the instrument through which such a nominee is named and authorised to attend the meeting.
Or
When and by whom an extraordinary general meeting be called? Discuss.                         6+8=14
Ans: Provisions of the Company’s Act relating to Extraordinary General Meeting (EGM): (Sec. 100 of the Companies Act, 2013)
Every general meeting (i.e. meeting of members of the company) other than the statutory meeting and the annual general meeting or any adjournment thereof, is an extraordinary general meeting. Such meeting is usually called by the Board of Directors for some urgent business which cannot wait to be decided till the next AGM. Every business transacted at such a meeting is special business. An explanatory statement of the special business must also accompany the notice calling the meeting. The Articles of Association of a Company may contain provisions for convening an extraordinary general meeting.
The main purpose (Objectives) to hold these meetings are:
a)      Change in memorandum of association.
b)      Change in articles of association.
c)       Reduction or reorganization of share capital.
d)      Issue of debentures.
e)      Removal of directors.
f)       Removal of auditors.
The business transacted at an extraordinary general meeting, being special business, every notice of such meeting must be accompanied by an explanatory statement.
Legal Provisions Relating to Extraordinary General Meeting (EGM):
1. By Whom EGM is called:
a) By the Board of directors: EGM may be called by the board whenever it deems fit by depositing a valid requisition at the registered office. On receipt of a valid requisition, the board shall within 21 days proceed to call an EGM to be held not later than 45 days from the date of deposit of requisition. The notice shall be given to those members whose names appear in the register of members within 3 days of receipt of a valid requisition.
b) On the Requisition of shareholders: EGM may be called on requisition of members holding 1/10th or more of the paid up equity share capital if company have share capital. If company do not have share capital, on requisition of members holding 1/10th or more of total voting power. The requisition shall specify the matters for the consideration of which EGM is to be called and it is signed by all the requisitionists or a requisitionist duly authorised.
c) By the requisitionists themselves: If the board fails to call an EGM, it may be called by the requisitionists themselves as follows:
The EGM shall be held within 3 months from the date of deposit of the requisition.
The EGM shall be called in the same manner in which a meeting is called by the board of directors.
The requisitionists shall be entitled to receive a list of members from the company.
The EGM should be convened on a working day at the registered office or in the same city or town in which the registered office is situated.
The notice of EGM shall be given by speed post or registered post or electronic mode.
The notice of EGM shall disclose the place, date, day, hours and business to be transacted at the meeting.
d) By the tribunal: If for any reason it is impractible to call a meeting of a company, other than annual general meeting, in any manner in which meeting of the company may be called, or to hold or conduct the meeting of the company in the manner prescribed by this act or the articles, the tribunal may, either of its own motion or on the application of any director of the company, or of any member of the company who would be entitled to vote at the meeting order a meeting of the company to be called, held and conducted in such manner as the tribunal thinks fit and give such ancillary directions as the tribunals thinks necessary.
7. Discuss briefly the provisions of the Companies Act, regarding the appointment of director in a company.    14
Ans: Appointment of Directors
Section 149 of the Companies Act, 2013, makes it obligatory on every public company to have at least three directors and on every other company to have at least two directors. The directors may be appointed in the following ways:
1. Appointment of First Directors (Sec. 152): First directors mean the director of the company who assumes office from the date of incorporation of the company. The first directors of a company may be named in its articles of association and if it is not mentioned, then the subscribers of the memorandum of association who are individual, shall be deemed to be the first directors of the company, until the directors are not appointed in accordance with Section 152.
In case of public company, if the article provides any share qualification, only such subscribers as possess the necessary share qualification shall be deemed to be directors. The articles at the time of registration may contain the names of the first directors until directors are appointed in the first general meeting.
2. Appointment of Directors by Members in the General Meeting (Sec. 152(2): Except for the first director, the subsequent directors are appointed by the company in the general meeting. Sec. 152(2) provides that not less than 2/3 of the total number of directors of a public company, or of a private company which is subsidiary of a public company must be appointed by the company in general meeting. These directors must be subject to retirement by rotation. The remaining directors of such a company and a purely private company are appointed by the company in general meeting
3. Appointment by Board of Directors: The directors are appointed in the general meeting by the members. But, the Board of Directors may also appoint the directors, in the following way:
a. Additional Directors: Section 161, of the Act, lays down that the Board may appoint additional directors if the article of association of a company empower the Board of Directors to do so. Such additional directors shall hold office only up to the date of the next annual general meeting. If the annual general meeting is not held, then such additional director vacates his office on the last day on which the annual general meeting should have been held in terms of Section 166. The additional directors are exempted from the requirement of filing consent to act as directors.
b. Casual Vacancies: Section 161 empowers the Board of Directors to appoint the directors in the casual vacancy which may occur due to any reasons like, death, resignation, insanity, insolvency etc of the directors. Such casual vacancy may be filled according to the regulations and procedure prescribed by the articles of association. A person appointed to fill a casual vacancy will hold office only till the date up to which the directors in whose place, he is appointed would have held office. 
c. Alternate Directors: The Board Meeting may be held at a time when a director is, absent for a period of more than three months from the state and in such a situation, an ‘alternate director’ is appointed. The Board of Directors can appoint the additional director in the absence of a director if so authorized by articles or by a resolution passed by the company in general meeting. The alternate director shall work until the original director return or up to the period permitted to the original director. The provision of the Act not applicable to the alternate director is as:
A. The appointment of an alternate director is not considered as an increase in the strength of the Board of Directors.
B. Alternate Directorship held by a person cannot be counted for the maximum number of directorship, which a person can hold.
C. An alternate director is not required to hold any qualification shares.
4. Appointment of Directors by Central Government: At least 100 members of the company or the members of the company who hold at least one-tenth of the total voting power, approach the Central Government for appointing a director to safeguard the interest of the company or its members or the public or to curb the oppressive and mismanagement of company’s affairs.
The term of appointment of the directors by the Central Government should not exceed 3 years and he may be removed by the Central Government for appointing another person to hold the office.
5. Appointment of Directors by Third-Parties if the Article provides (Sec. 152): A company may have ‘nominee directors’ which is permissible in a company if the articles of association gives power to such third parties to appoint their nominee on company’s board. Here the third party may be debenture holders, financial corporation, banking companies who have advanced loan to the company to safeguard their interests that the money is only used for the purpose for which it was borrowed.
6. Appointment of Directors By small shareholders if the article provides: The Small Shareholders, in case of a public company having:
i) A paid-up capital of five cores rupees or more, and
ii) one thousand or more small shareholders.
may have a director elected by such small shareholders in the manner as may be prescribed.
The directors are appointed by ordinary resolution i.e. through the majority of the shareholders. The minority of the shareholders does not get the opportunity to send representative in the Board of Directors. But, through proportional representative voting, the shareholders can get that opportunity.
7. Appointment of directors by professional representation (Sec. 163): The Directors of a company are generally appointed by simple majority. As a result majority shareholders controlling 51% or more votes may elect all directors and a substantial minority of 49% may not find any representation on the board. This section give power to the minority shareholders to elect directors through single transferable vote and cumulative voting.

Or
Discuss briefly the modes of winding up of a company.                                                14
Ans: Winding up - Meaning and Modes
Meaning: Winding up of a company is defined as a process by which the life of a company is brought to an end and its property administered for the benefit of its members and creditors. In words of Professor Gower, “Winding up of a company is the process whereby its life is ended and its Property is administered for the benefit of its members & creditors. An Administrator, called a liquidator is appointed and he takes control of the company, collects its assets, pays its debts and finally distributes any surplus among the members in accordance with their rights.”
Modes of winding up of a company
As per section 270 of the Companies Act 2013, the procedure for winding up of a company can be initiated either:
a) By the tribunal or,
b) Voluntary.
a) Winding up by the tribunal: As per new Companies Act 2013, a company can be wound up by a tribunal in the below mentioned circumstances:
1. When the company is unable to pay its debts
2. If the company has by special resolution resolved that the company be wound up by the tribunal.
3. If the company has acted against the interest of the integrity or morality of India, security of the state, or has spoiled any kind of friendly relations with foreign or neighboring countries.
4. If the company has not filled its financial statements or annual returns for preceding 5 consecutive financial years.
5. If the tribunal by any means finds that it is just & equitable that the company should be wound up.
6. If the company in any way is indulged in fraudulent activities or any other unlawful business, or any person or management connected with the formation of company is found guilty of fraud, or any kind of misconduct.
Filling up winding up petition: Section 272 provides that a winding up petition is to be filed in the prescribed form no 1, 2 or 3 whichever is applicable and it is to be submitted in 3 sets. The petition for compulsory winding up can be presented by the following persons:
a)      The company
b)      The creditors ; or
c)       Any contributory or contributories
d)      By the central or state govt.
e)      By the registrar of any person authorized by central govt. for that purpose
FINAL ORDER AND ITS CONTENT: The tribunal after hearing the petition has the power to dismiss it or to make an interim order as it think appropriate or it can appoint the provisional liquidator of the company till the passing of winding up order. An order for winding up is given in form 11.
b) Voluntary winding up of a company: The company can be wound up voluntarily by the mutual decision of members of the company, if:
a)      The company passes a Special Resolution stating about the winding up of the company.
b)      The company in its general meeting passes a resolution for winding up as a result of expiry of the period of its duration as fixed by its Articles of Association or at the occurrence of any such event where the articles provide for dissolution of company.
PROCEDURE FOR VOLUNTARY WINDING UP:
1. Conduct a board meeting with 2 Directors and thereby pass a resolution with a declaration given by directors that they are of the opinion that company has no debt or it will be able to pay its debt after utilizing all the proceeds from sale of its assets.
2. Issues notices in writing for calling of a General Meeting proposing the resolution along with the explanatory statement.
3. In General Meeting pass the ordinary resolution for the purpose of winding up by ordinary majority or special resolution by 3/4th majority. The winding up shall be started from the date of passing the resolution.
4. Conduct a meeting of creditors after passing the resolution, if majority creditors are of the opinion that winding up of the company is beneficial for all parties then company can be wound up voluntarily.
5. Within 10 days of passing the resolution, file a notice with the registrar for appointment of liquidator.
6. Within 14 days of passing such resolution, give a notice of the resolution in the official gazette and also advertise in a newspaper.
7. Within 30 days of General meeting, file certified copies of ordinary or special resolution passed in general meeting.
8. Wind up the affairs of the company and prepare the liquidators account and get the same audited.
9. Conduct a General Meeting of the company.
10. In that General Meeting pass a special resolution for disposal of books and all necessary documents of the company, when the affairs of the company are totally wound up and it is about to dissolve.
11. Within 15 days of final General Meeting of the company, submit a copy of accounts and file an application to the tribunal for passing an order for dissolution.
12. If the tribunal is of the opinion that the accounts are in order  and all the necessary compliances have been fulfilled, the tribunal shall pass an order for dissolving the company within 60 days of receiving such application.
13. The appointed liquidator would then file a copy of order with the registrar.
14. After receiving the order passed by tribunal, the registrar then publish a notice in the official Gazette declaring that the company is dissolved.

(OLD COURSE)
Full Marks: 80
Pass Marks: 32
1. Write True or False:                                                    1x4=4
a)      Private companies are not required to have any Memorandum of Association or Articles of Association.       False
b)      A fixed charge becomes floating charge when a company goes into liquidation.                 True
c)       Only one director can be appointed as a Managing Director.                        True
d)      Share can be converted to stock but stock cannot be reconverted to share.         False
2. Fill in the blanks:                                                          1x4=4
a)      In case of private company, quorum of general meeting is minimum two members personally present.
b)      When market price of shares is more than the face value, the difference between the two is called premium.
c)       A person appointed to attend and vote on behalf of a member in a company meeting is known as a proxy.
d)      A person cannot hold office as director at simultaneously in more than 20 companies.
3. Write short notes on (any four):                           4x4=16
a)      Memorandum of Association.
b)      Government Company.
c)       Fixed Charge.
d)      Alternative Director.
e)      Transfer of share.
f)       Proxy.
4. What do you understand by prospectus? Explain the legal provisions in relation to a prospectus.       3+9=12
Ans: Prospectus: Section 2(70) of the Companies Act, 2013 defines a prospectus as ““A prospectus means Any documents described or issued as a prospectus and includes any notices, circular, advertisement, or other documents inviting deposit fro the public or documents inviting offer from the public for the subscription of shares or debentures in a company.” A prospectus also includes shelf prospectus and red herring prospectus. A prospectus is not merely an advertisement. A document shall be called a prospectus if it satisfy two things:
1)      It invites subscription to shares or debentures or invites deposits.
2)      The aforesaid invitation is made to the public.
Legal requirement regarding issue of prospectus: (Sec. 26 of the Companies Act, 2013)
The Companies Act has defined some legal requirements about the issue and registration of a prospectus. The issue of the prospectus would be deemed to be legal only if the requirements are met.
1.      Issue after the incorporation: As a rule, the prospectus of a company can only be issued after its incorporation. A prospectus issued by, or on behalf of a company, or in relation to an intended company, shall be dated, and that date shall be taken as the date of publication of the prospectus.
2.       Registration of prospectus: it is mandatory to get the prospectus registered with the Registrar of Companies before it is issued to the public. The procedure of getting the prospectus registered  is as under:
a.      A copy of the prospectus, duly signed by every person who is named therein as a director or a proposed director of the company must be filed with Registrar of Companies before the prospectus is issued to the public.
b.      The following document must be attached thereto:
(i)     Consent to the issue of the prospectus required under any person as an expert confirming his written consent to the issue thereof, and that he has not withdrawn his consent as aforesaid appears in the prospectus.
(ii)   Copies of all contracts entered into with respect to the appointment of the managing director, directors and other officers of the company must also be filed with Registrar.
(iii) If the auditor or accountant of the company has made any adjustments in the company’s account, the said adjustments and the reasons thereof must be filed with the documents.
(iv)  There must be a copy of the application which is to be filled for the issue of the company’s shares and debentures attached with the prospectus.
(v)    The prospectus must have the written consent of all the persons who have been named as auditors, solicitors, bankers, brokers, etc.
c.       Every prospectus must have, on the face of it, a statement that:
(i)     A copy of the prospectus has been delivered to the Registrar for registration.
(ii)   Specifies that any documents required to be endorsed by this section have been delivered to the Registrar.
d.      A copy of the prospectus must be filed with the Registrar of Companies.
e.      According to the Section 26, no prospectus shall be issued more than ninety days after the date on which a copy thereof is delivered for registration.
If a prospectus issued in contravention of the above –stated provisions, then the company and every person who knows a party to the issue of the prospectus shall be punishable with a fine.
Or
Discuss in brief the documents to be filed with the Registrar for the registration of a company.               12
Ans: The promoter delivers the following documents to the registrar:
1)      Application for availability of name
2)      Memorandum of Association
3)      Articles of Association
4)      Copy of proposed agreement
5)      Statement on nominal capital
6)      Address of the registered office
7)      List of directors and their consent
8)      Undertaking to take up qualification shares
9)      Statutory declaration
Explain MOA, AOA and Prospectus
5. Discuss the rights of the members in a public limited company.                                           11
Ans: Rights of a member
1.       Right to obtain the share certificate from the company.
2.       Right to have his name entered in the register of members.
3.       Right to transfer his securities (subject to the restrictions contained in the articles and the Act.
4.       Right to receive the notice of general meetings, attend the general meetings and vote thereat.
5.       Right to receive the dividend, where a dividend is declared by the company.
6.       Right to apply to the Court seeking an injunction restraining the directors from paying dividend out of capitals.
7.       Right to inspect and obtain extracts and copies of the registers and indices of members, debenture-holders and other security holders, and annual returns.
8.       Right to obtain copies of Memorandum and Articles.
9.       First right to have the shares offered to him in case of further issue of shares.
10.   Right to apply to the Court to set aside any variation in the rights attached to any class of shares.
11.   Right to give a special notice so as to move a resolution requiring special notice.
12.   Right to receive a copy of special notice when special notice is served on the company.
13.   Right to obtain a copy of the minutes of the general meeting.
14.   Right to requisition an Extra-ordinary General meeting (EGM) of the company.
15.   Right to vote at a general meeting in respect of any matter requiring an ordinary resolution or a special resolution.
16.   Right to vote by means of electronic mode in respect of any matter requiring an ordinary resolution or a special resolution.
17.   Right to vote by postal ballot when a resolution is put to vote by the company by way of postal ballot.
18.   Right to obtain copies of profit and loss account, balance sheet, auditor’s report and other documents.
19.   Right to make an application to the Company Law Board seeking an order for calling the AGM.
20.   Right to make an application to the Company Law Board seeking an order for calling an EGM.
Or
What is share warrant? How does it differ from share certificate?                                           4+7=11
6. Explain the procedures of registration of charges.                                                                      11
Or
Discuss different types of charges. Which charges need compulsory registration?                                           3+8=11
7. Explain the restriction on commencement of business of a public company having share capital.        11
Or
Discuss the provisions of Company Law regarding annual general meeting.                        11
Ans: Provisions of the Company’s Act relating to Annual General Meeting: (Sec. 96 of the Companies Act, 2013)
As the term denotes, annual general meeting is the meeting under section 96 which has to be held annually. It is the meeting of the members through which they get the opportunity to express their views on the management of the company. Through this meeting, the shareholders can exercise control over the affairs of the company. The ‘Annual General Meeting’ is sometimes called ‘”Ordinary General Meeting” as it usually deals with the so-called ‘Ordinary Business’.
The main purpose (Objectives) to hold these meetings are:
1.       To submit the annual account, balance sheet, director’s report and auditor’s report.
2.       To declare the dividend.
3.       Special business- any other business to be transacted will be deemed special business likes:
4.       To increase share capital
5.       To alter Article of Association
6.       To appoint auditors and fix their remuneration.
7.       To elect directors are that liable to retire by rotation.
Legal Provisions Relating to Annual General Meeting
Every company is required to hold this meeting. But, there are certain legal provisions which have to be followed, relating to the annual general meeting as contained in sections 96 and 97. There are:
a.       First Annual general meeting: A company may hold its first annual general meeting within a period of 9 months from the date of incorporation. However this should not be more than 9 months from close of financial years.
b.      Subsequent meeting: There must be one meeting held in each year. The gap between two annual general meetings must not be more than 15 months. Meeting must be held not later than 6 months from close of financial year.
c.       Extension of time: the registrar has the power to extend the time of 15 months by 3 more months in special cases.
d.      Day, hour and place of meeting: The meeting can be held at any working place, on any working day and working hours. If the day scheduled for meeting is declared by the Central Government to be a public holiday after the issue of the notice, it shall not be deemed as a holiday.
e.      Notice of the meeting: 21 clear days notice or any shorter notice if agreed by all shareholders must be given.
f.        Business to be transected: At every AGM, the following matters must be discussed and decided. Since such matters are discussed at every AGM, they are known as ordinary business. All other matters and business to be discussed at the AGM are special business.
The following matters constitute ordinary business at an AGM :
a.     Consideration of annual accounts, director’s report and the auditor’s report
b.     Declaration of dividend
c.     Appointment of directors in the place of those retiring
d.     Appointment of and the fixing of the remuneration of the statutory auditors.
Ordinary business is transacted by passing ordinary resolution.
Special Business: All matters other than ordinary business are treated as special business at an annual general meeting. For transacting special business at a meeting, there shall be annexed to the notice of meeting an explanatory statement setting out:
a)      All material facts concerning each item of such business, and
b)      In particular, nature of the concern or interest, if any, of every director or manager in each item.
c)       Statement must also state time and place where document, if any, proposed for approval at the meeting can be inspected by members.
d)      The items constituting special business are transacted either by an ordinary resolution or by a special resolution depending on the requirements of the Companies Act 2013 or articles of the company in respect of each particular item.
g.       Default in holding Annual general meeting: As mentioned earlier, every company is required to hold this meeting according to the provision of the Companies Act. If any company fails to hold the annual general meeting the consequences are as follows:
A. As mentioned above, the annual general meeting provides the opportunity to the members to express views on the management of the company. Any member can apply to the Central Government for the failure of the company to call the meeting. The Central Government may give direction to the company for calling the meeting.
B. The company as well as every officer will become liable if  they fail to held the meeting and shall be punishable with fine upto Rs. 50,000, and if the default continues , with a further fine of Rs. 2,500 for every day after the first day of default during which the default continues. 

8. Explain the provisions of Company Law regarding the constitution of the Board of Director.                  11
Ans: Sec. 149 prescribes the mode of constitution of the board of directors. The purpose of the section is to prevent the company from going into the hands of a single person. The provisions relating to the minimum and maximum number of directors are explained as follows:
1. Minimum number of directors: Every public company shall have minimum of 3 directors and every private company shall have a minimum of 2 directors and every one person company must have 1 director.
a)      When number of directors fall below statutory minimum:
b)      The provisions as to number of directors are mandatory and any business transacted after the number of directors fell below the statutory minimum was held to be invalid
c)       Where the minimum number of directors are three, but only two directors were appointed, an allotment of shares by two directors was held to be invalid, though two directors were sufficient to form a quorum
2. Maximum number of directors: The Companies Act, 2013 has prescribed the maximum number of directors as 15. However, a company may appoint more than 15 directors after passing a special resolution.
Increase or Decrease in number of directors: The company in general meeting can increase or reduce the number of directors. The provisions in this regard are as follows:
1) Increase or decrease in general meeting.
2) Increase with the approval of the central government.
3. Woman Director: As per Sec. 149(1) of the Companies Act, 2013, the following companies shall appoint atleast one woman director:
1) Every listed company.
2) Every other public companies having a paid share capital of Rs. 100 crores or more or turnover of Rs. 300 crores or more.
A period of six months from the date of company’s incorporation has been provided to enable the companies incorporated under Companies Act, 2013 to comply with this requirement. Therefore, the existing companies has to comply the above requirements within one year and new companies incorporated under the new companies act has to comply within 6 months from the date of its incorporation.
Further if there is any intermittent vacancy of a woman director then it shall be filled up by the board of directors within 3 months from the date of such vacancy or not later than immediate next board meeting, whichever is later. This has been a welcome move.
Or
Explain the duties of directors in a company.                                                                                     11
Ans: Duties of the Directors
A. Fiduciary duties: As fiduciaries, the directors must:
(a) Exercise their powers honestly and bona fide for the benefit of the company as a whole; and
(b) Not to place themselves in a position in which there is a conflict between their duties to the company and their personal interests. They must not make any secret profit out of their position. If they do, they have to account for it to the company.
B. Duties of care, skill and diligence: Directors should carry out their duties with reasonable care and exercise such degree of skill and diligence as is reasonably expected of persons of their knowledge and status. He is not bound to bring any special qualifications to his office.
C. Standard of care: The standard of care, skill and diligence depends upon the nature of the company’s business and circumstances of the case. They are various standards of the care depending upon:
(a) The type and nature of work
(b) Division of powers between directors and other officers
(c) General usages and customs in that type of business; and
(d) Whether directors work gratuitously or remuneratively
D. Duty to disclose interest: Where a director is personally interested in a transaction of the company, he is required to disclose his interest to the board. An interested director is neither to vote on the matter of his interest nor his presence shall count for the purposes of quorum.
E. Duty to attend board meetings: The Act only says that the office of a director is automatically vacated if he fails to attend three consecutive meetings of the board or all meetings for a period of 3 months, whichever is longer. Moreover, a director’s habitual absence may become evidence of negligence.

F. Duty not to delegate: A director should not delegate his functions to another person. But delegation of functions may be made to the extent to which it is authorized by the Act or the constitution of the company.

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