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STUDY MATERIAL EXECUTIVE PROGRAMME CCCCOOOOMMMMPPPPAAAANNNNYYYY LLLLAAAAWWWW PAPER 1 ICSI House, 22, Institutional Area, Lodi Road, New Delhi 110 003 tel 011-4534 1000, 4150 4444 fax +91-11-2462 6727 email [email protected] website www.icsi.edu © THE INSTITUTE OF COMPANY SECRETARIES OF INDIA TIMING OF HEADQUARTERS Monday to Friday Office Timings – 9.00 A.M. to 5.30 P.M. Public Dealing Timings Without financial transactions – 9.30 A.M. to 5.00 P.M. With financial transactions – 9.30 A.M. to 4.00 P.M. Phones 4150444,45341000 Fax 011-24626727 Website www.icsi.edu E-mail [email protected] Laser Typesetting by Delhi Computer Services, Dwarka, New Delhi Printed at M.P. Printers/July, 2014/10,000 EXECUTIVE PROGRAMME COMPANY LAW In view of increasing emphasis on adherence to norms of good corporate governance, Company Law assumes an added importance in the corporate legislative milieu, as it deals with structure, management, administration and conduct of affairs of Companies. A thorough study of various provisions of the Companies Act is a must for becoming a competent and efficient Company Secretary. In the light of this, the study material has been published to impart thorough knowledge to the students preparing for the Company Law paper of the CS Executive Programme. The study material is based on those sections of the Companies Act, 2013 and the rules made there under which have been notified by the Government of India and came into force w.e.f. April 01, 2014 (including Amendments/clarifications/circulars issued there under upto June, 2014). In respect of sections of The Companies Act, 2013 which have not been notified, applicable sections of Companies Act, 1956 have been dealt with in the study. Company Secretaryship being a professional course, the examination standards are set very high, with emphasis on knowledge of concepts, applications, procedures and case laws, for which sole reliance on the contents of the study material may not be enough. Besides Company Secretaries Regulations, 1982 requires the students to be conversant with the amendments to the laws made upto six months preceding the date of examination. This study material may therefore be regarded as basic material and must be read along with the notified provisions of companies Act 2013 and rules made thereunder and the provisions of Companies Act 1956 which is still in force. The amendments made upto June 2014 have been incorporated in this study material. However, it may happen that some developments might have taken place during the printing of the study material and its supply to the students. The students are therefore advised to refer to the bulletin 'Student Company Secretary' and ICSI Journal Chartered Secretary and other publications for updation of study material. In the event of any doubt, students may contact the Directorate of Academicsat [email protected]. Although due care has been taken in publishing this study material yet the possibility of errors, omissions and/or discrepancies cannot be ruled out. This publication is released with an understanding that the Institute shall not be responsible for any errors, omissions and/or discrepancies or any action taken in that behalf. Should there be any discrepancy, error or omission noted in the study material, the Institute shall be obliged if the same are brought to its notice for issue of corrigendum in the e-bulletin' and Student Company Secretary'. (iv) EXECUTIVE PROGRAMME SYLLABUS FOR MODULE 1 - PAPER 1: COMPANY LAW (100 MARKS) Level of Knowledge: Expert Knowledge Objective: To acquire knowledge and develop understanding of the regulatory framework of companies with reference to various provisions of Companies Act and its schedules, rules, notifications, circulars, clarifications there under including case laws and Secretarial standards. Detailed Contents: 1. Introduction • Historical Development of Concept of Corporate Law in India • Company – Definition, Meaning, Nature and its Characteristics • Nature and Forms of Business • Company vis-à-vis other Forms of Business • Concept of Corporate Personality, Corporate Veil, Limited Liability and Citizenship 2. Incorporation and its Consequences • Types of Companies and their incorporation • Promoters – Meaning, Position, Duties, Rights, Responsibilities and Liabilities • Formation of Companies – Procedural Aspects • Memorandum of Association & Articles of Association and their Alteration • Contracts and Conversion of Companies • Commencement of Business • Doctrine of Ultra-Vires, Constructive Notice, Indoor Management, Alter Ego 3. Financial Structure • Concept of Capital and Financing of Companies– Sources of Capital; Classes and Types of Shares; Equity Shares with Differential Rights; Issue of Shares at Par, Premium and Discount; Forfeiture and Surrender of Shares; Bonus Issues; Rights Issues; Issue of Sweat Equity Shares; Employees Stock Option Scheme; Private Placement; preference shares and other forms of securities • Alteration of Share Capital– Reduction of Capital; Buy–Back of Shares • Prospectus– Definition; Abridged Prospectus; Red–Herring Prospectus; Shelf Prospectus; Information Memorandum; Contents, Registration; Misrepresentations and Penalties • Debt Capital – Debentures, Debenture Stock, Bonds; Recent Trends and Dynamics of Corporate Debt Financing; Debenture Trust Deed and Trustees; Conversion of and Redemption of Debentures • Securing of Debts:Charges ; Creation, Modification and Satisfaction of Charges • Allotment and Certificates – General Principles and Statutory Provisions related to Allotment; Minimum Subscription; Irregular Allotment; Procedure of Issue of Share Certificates and Warrants (v) 4. Membership in a Company • Modes of Acquiring Membership • Rights and Privileges of Members, Register of Members • Dematerialisation and Rematerialisation of Securities • Transfer and Transmission of Securities in Physical and Dematerialized forms • Nomination 5. Management and Control of Companies • Directors– Types, Director’s Identification Number (DIN), Appointment/Reappointment, Qualifications, Disqualifications, Vacation of Office, Retirement, Resignation and Removal of Managing and Whole–Time Directors and Manager • Role and Responsibilities of Directors • Powers and Duties • Loans to Directors • Remuneration of Directors • Office or Place of Profit • Contracts in which Directors are Interested • Board of Directors and its Committees • Company Secretary – Appointment, Role and Responsibilities • Company Secretary as a Key Managerial Personnel • Meetings: • Meetings of Board and Committees– Frequency, Convening, Proceedings, Video Conferencing of Board/Committee(s); Resolution by Circulation; Minutes and Evidence • General Meetings – Kinds of Meetings; Law, Practice and Procedure Relating to Convening and Proceedings at General and Other Meetings; Notice, Quorum, Chairman, Proxy, Voting including Voting through Electronic Means; Resolutions, Circulation of Members’ Resolution, etc.; Postal Ballot; Recording, Signing and Inspection of Minutes; • Distribution of Powers of a Company – Division of Powers between Board and General Meetings; Acts by Directors in Excess of Authority; Monitoring and Management • Sole Selling and Buying Agents – Meaning, Appointment and Reappointment, Removal; Powers of Central Government and Rules Framed for the Purpose 6. Investments, Loans and Deposits • Law relating to making investments in and granting loans to other bodies corporate and giving guarantees and providing security • Acceptance of Deposits, Renewal, Repayment, Default and Remedies 7. Accounts and Audit • Books of Accounts • Financial Statements • Auditors – Appointment, Resignation and Removal; Qualification and Disqualification; Rights, Duties and Liabilities • Audit and Auditor’s Report • Cost Audit and Special Audit (vi) 8. Dividends • Profit and Ascertainment of Divisible Profits • Declaration and Payment of Dividend • Treatment of Unpaid and Unclaimed Dividend • Transfer of Unpaid and Unclaimed Dividend to Investor Education and Protection Fund • Board’s Report and Disclosures Contents and Annexure to Board’s Report • Directors’ Responsibility Statement – Preparation and Disclosures • Compliance Certificate – Need and Objective; Issue and Signing by Practising Company Secretary • Corporate Governance Report 9. Registers, Forms and Returns • Statutory Books and Registers prescribed under various provisions of the Company Law– Maintenance, Authentication Place of Keeping and Inspection • Filing of various Forms and Returns with the Authorities • Procedure and Penalties for Delayed Filing • Annual Return –Nature and Significance; Contents; and Certification by Practising Company Secretary 10. Inspection and Investigation • Inspection of Documents • Powers of the Inspector • Seizure of Books And Documents • Inspector’s Report • Power of the Registrar of Companies • Investigation into Affairs of the Company 11. Majority Rule and Minority Rights • Law relating to Majority Powers and Minority Rights • Shareholder Remedies – Actions by Shareholders; Statutory Remedies; Personal Actions • Prevention of Oppression and Mis-Management 12. Merger, De-merger, Amalgamation, Compromises and Arrangements – An Overview 13. Producer Companies • Concept, Formation, Functioning and Dissolution 14. Limited Liability Partnerships • Concept, Formation, Membership, Functioning and Dissolution 15. Application of Company Law to Different Sectors • Banking • Insurance • Others (vii) 16. Offences and Penalties • Introduction • Officer in Default • Penalties 17. Compounding of Offences 18. Winding up of Companies –An Overview • Concept and Modes 19. Striking Off Name of Companies 20. An Introduction to E-Governance and XBRL (viii) LIST OF RECOMMENDED BOOKS MODULE I PAPER 1 : COMPANY LAW Readings: 1. Dr. Avtar Singh : Company Law; Eastern Book Company, 34, Lalbagh, Lucknow – 226 001 2. C.R. Datta : Datta on the Company Law; Lexis Nexis, Butterworths Wadhwa, Nagpur 3. A. Ramaiya : Guide to the Companies Act; Lexis Nexis, Butterworths Wadhwa, Nagpur 4. K.C. Garg, R.C. : Company Law; Kalyani Publishers, 1/1, Rajinder Nagar, Civil Chawla, Vijay Gupta Lines, Ludhiana – 141 001. 5. A.K. Mujumdar, Dr. : Company Law and Practice; Taxmann, 59/32, New Rohtak Road, New G.K. Kapoor Delhi-110 005. 6. V.S. Datey : Guide to Tax and Corporate Laws; Taxmann, 59/32, New Rohtak Road, New Delhi-110 005. 7. M.C. Kuchhal : Modern Indian Company Law; Shri Mahavir Book Depot, 2603, Nai Sarak, Delhi-110 006. 8. H.K. Saharay : Company Law; Universal Law Publishing Co., C-FF-1A, Dilkhush Industrial Estate, G.T. Karnal Road, Delhi. -110033. References: 1. D.K. Jain : Company Law Ready Reckoner; Bharat Law House Pvt. Ltd.; T- 1/95, Mangolpuri Industrial Area, Delhi-110083. 2. R. Suryanarayanan : Company Law Ready Reckoner; Commercial Law Publishers, 151, Rajinder Market, Opp. Tis Hazari Court, Delhi-110054. 3. Palmer : Company Law (Vol. 1); Stevens & Sons Ltd., London. 4. L.C.B. Gower : Principles of Modern Company Law; Stevens & Sons Ltd., London. 5. Taxmann’s : Circulars & Clarifications on Company Law; Taxmann, 59/32, New Rohtak Road, New Delhi-110 005. 6. Bare Act : Corporate Laws; Taxmann, 59/32, New Rohtak Road, New Delhi- 110 005. The Companies Act, 1956; Universal Law Publishing Co., C-FF- 1A, Dilkhush Industrial Estate, G.T. Karnal Road, Delhi. -110 003. (ix) Journals: 1. Chartered Secretary : ICSI, New Delhi 2. Student Company : ICSI, New Delhi Secretary 3. Corporate Law Adviser : Corporate Law Advisers, 613, Metro View Apt., Sector 13, Pocket B, Dwarka, New Delhi-110075. 4. Company Law Journal : Company Law Journal (India) Pvt. Ltd., 53/15, Old Rajinder Nagar, Post Box No. 2844, New Delhi-110060. Note: The latest edition of all the books referred to above should be read. (x) ARRANGEMENT OF STUDY LESSONS PAPER 1: COMPANY LAW (100 Marks) Lesson No. Subject 1 INTRODUCTION 2 TYPES OF COMPANIES 3 PROMOTION AND INCORPORATION OF COMPANIES 4 MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION 5 CONTRACTS AND CONVERSIONS 6 CONCEPT OF CAPITAL AND FINANCING OF COMPANIES 7 ALTERATION OF SHARE CAPITAL 8 PRIVATE PLACEMENT AND PROSPECTUS 9 DEBT CAPITAL 10 CREATION AND REGISTRATION OF CHARGES 11 ALLOTMENT OF SECURITIES AND ISSUE OF CERTIFICATES 12 MEMBERSHIP IN A COMPANY 13 TRANSFER AND TRANSMISSION OF SECURITIES 14 INSTITUTION OF DIRECTORS 15 INDEPENDENT DIRECTORS 16 BOARD AND ITS POWERS 17 APPOINTMENT AND REMUNERATION OF KEY MANAGERIAL PERSONNEL 18 GENERALMEETINGS 19 LOANS AND INVESTMENTS BY COMPANY 20 DEPOSITS 21 ACCOUNTS AND AUDIT 22 DIVISIBLE PROFITS AND DIVIDENDS 23 BOARD’S REPORT AND DISCLOSURES 24 REGISTERS, FORMS AND RETURNS 25 INSPECTION AND INVESTIGATION 26 MAJORITY RULE AND MINORITY RIGHTS 27 MERGER, DE-MERGER, AMALGAMATION, COMPROMISE AND ARRANGEMENTS – AN OVERVIEW 28 PRODUCER COMPANIES 29 LIMITED LIABILITY PARTNERSHIPS 30 APPLICATION OF COMPANY LAW TO DIFFERENT SECTORS 31 OFFENCES, PENALTIES AND THEIR COMPOUNDING 32 WINDING UP OF COMPANIES 33 STRIKING OFF NAME OF COMPANIES 34 AN INTRODUCTION TO E-GOVERNANCE AND XBRL TEST PAPERS