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Filing of resolutions with the ROC – old section 192/ form 23

The old section 192 of Companies Act, 1956 has undergone a metamorphosis of sorts with the new section 117 of the Companies Act, 2013. Section 117 refers to filing of certain resolutions or agreements together with explanatory statements, if any under section 192 of the CA 2013 within 30 days of the passing thereof. 

Section 117(3) provides that this section applies to 

(a) special resolutions;
(b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions;
(c) any resolution of the Board of Directors of a company or agreement executed by a company, relating to the appointment, re-appointment or renewal of the appointment, or variation of the terms of appointment, of a managing director;
(d) resolutions or agreements which have been agreed to by any class of members but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by a specified majority or otherwise in some particular manner;
and all resolutions or agreements which effectively bind such class of members though not agreed to by all those members;
(e) resolutions passed by a company according consent to the exercise by its Board of Directors of any of the powers under clause (a) and clause (c) of sub-section (1) of section 180;
(f) resolutions requiring a company to be wound up voluntarily passed in pursuance of section 304;
(g) resolutions passed in pursuance of sub-section (3) of section 179; and
(h) any other resolution or agreement as may be prescribed and placed in the public domain.

Now for resolutions passed in pursuant of section 179(3), we turn to that section:

Section 179(3) provides for folllowing matters which can be passed only at Board meetings and not otherwise. 

(3) The Board of Directors of a company shall exercise the following powers on behalf of the company by means of resolutions passed at meetings of the Board, namely:—
(a) to make calls on shareholders in respect of money unpaid on their shares;
(b) to authorise buy-back of securities under section 68;
(c) to issue securities, including debentures, whether in or outside India;
(d) to borrow monies;
(e) to invest the funds of the company;
(f) to grant loans or give guarantee or provide security in respect of loans;
(g) to approve financial statement and the Board’s report;
(h) to diversify the business of the company;
(i) to approve amalgamation, merger or reconstruction;
(j) to take over a company or acquire a controlling or substantial stake in another company;
(k) any other matter which may be prescribed:

Explanation II.—In respect of dealings between a company and its bankers, the exercise by the company of the power specified in clause (d) shall mean the arrangement made by the company with its bankers for the borrowing of money by way of overdraft or cash credit or otherwise and not the actual day-to-day operation on overdraft, cash credit or other accounts by means of which the arrangement so made is actually availed of.

So this means that any borrowings from any banks by way of cash limits/ overdrafts/ bills discounting limits including borrowing for car loans. It would ipso facto also include inter corporate borrowings and unsecured loans. 

For matters specified in section 179(k), we have to refer to Rule 8 of the Companies (Meetings of the Board and its Powers) Rules, 2014 which specify the following matters.

(1) to make political contributions;
(2) to appoint or remove key managerial personnel (KMP);
(3) to take note of appointment(s) or removal(s) of one level below the Key Management Personnel;
(4) to appoint internal auditors and secretarial auditor;
(5) to take note of the disclosure of director’s interest and shareholding;
(6) to buy, sell investments held by the company (other than trade investments), constituting five percent or more of the paid up share capital and free reserves of the investee company;
(7) to invite or accept or renew public deposits and related matters;
(8) to review or change the terms and conditions of public deposit;
(9) to approve quarterly, half yearly and annual financial statements or financial results as the case may be.

So Board resolutions pertaining to all these matters specified in Rule 8 and section 179(3) and Board/ general meeting resolutions specified in section 117 needs to be filed within 30 days of the Board meetings/ general meetings as aforesaid. 

The penalty for non compliance with these regulations is fine of not less than Rs.5 lakhs but which may extend upto Rs.25 lakhs for the company and for every officer in default, fine of not less than Rs.1 lakh but may extend to Rs.5 lakhs.

The filing has to be done in form MGT-14 with the enclosures. 

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