CS Divesh Goyal

BACKGROUND:

Ministry of Company Affairs, India has introduced a Bill for amendment (based on the report submitted by High Powered Committee under the Chairmanship of Dr. YK Alagh) in the Companies Act, 1956 by inserting Part IX A, paving a way for the incorporation of Producer Companies. The Act has allowed primary producers to organise themselves to gain a maximum profit from the market oriented economy.

For this, a new Part IXA, divided into 12 chapters, has been included in the Act, comprising 46 sections, interestingly numbered as 581A to 581Z and 581ZA to 581ZT. However, the section that defines the various types of companies that can be incorporated under the Act remains unaltered.

1. A producer company is a hybrid between a private limited company and a cooperative society.

2. It combines the goodness of a cooperative enterprise and the vibrancy and efficiency of a company.

3. It accommodates the unique elements of cooperative business with a regulatory framework similar to that of a private limited company

PROVISIONS UNDER COMPANIES ACT, 2013

Section 465 of the Companies Act, 2013:

i. The Companies Act, 1956 and the Registration of Companies (Sikkim) Act,1961 (hereafter in this section referred to as the repealed enactments) shall stand repealed

ii. The provisions of Part IX A of the Companies Act, 1956 shall be applicable mutatis mutandis to a Producer Company in a manner as if the Companies Act, 1956 has not been repealed until a special Act is enacted for Producer Companies ( 1st Proviso to Section 465(1))

Therefore, there are no separate provisions under the Companies Act, 2013 regarding producer Company. As mentioned above it still govern by chapter IXA of Companies Act, 2013.

Allowed Activities for Producer Companies:

A producer company is basically a body corporate registered as Producer Company under Companies Act, 2013 and shall carry on or relate to any of following activities classified broadly:-

(a) Production, harvesting, processing, procurement, grading, pooling, handling, marketing, selling, export of *primary produce of the Members or import of goods or services for their benefit.

(b) Rendering technical services, consultancy services, training, education, research and development and all other activities for the promotion of the interests of its Members;

(c) Generation, transmission and distribution of power, revitalization of land and water resources, their use, conservation and communications relatable to primary produce;

(d) Promoting mutual assistance, welfare measures, financial services, insurance of producers or their primary produce;

Silent Condition for Producer Companies:

i. Only persons engaged in an activity connected with, or related to, primary produce can participate in the ownership.

ii. The members have necessarily to be [1]primary producers.

iii. Termed as “Companies with Limited Liability” and the liability of the members will be limited to the amount, if any, unpaid on the shares.

iv. Name of the company shall end with the words “Producer Company Limited“.

v. On registration, the producer company shall become as if it is a Private Limited Company for the purpose of application of law and administration of the company

vi. However, it shall comply with the specific provisions of part IXA.

vii. The limit of maximum number of members is not applicable to these Companies.

Incorporation:

Any of the following combination of producers can incorporate a producer company:

i. Ten or more producers (individuals); or

ii. Two or more producer institutions; or

iii. Combination of the above two (10+2).

Share Capital:

i. Share capital of a Producer Company shall consist of equity shares only.

ii. Members’ equity cannot be publicly traded but only transferred

iii. Voting

a. Only of individuals, then voting rights shall be based on a single vote for every member.

b. Only of producer institutions, then voting rights on the basis of their participation.

c. Combination of both individuals and producer institutions then voting rights shall be based on a single vote for every member.

Director:

Every producer company is to have

i. At least 5 and not more than 15 directors.

ii. A full time chief executive should (CEO) be appointed by the board and

iii. shall be entrusted with substantial powers of management as the board may determine.

If any director resigns from his post the election shall be conducted within 90 days  from the date of resignation of such director.  The Director shall hold his office for a period not less than 1 year but not more than 5 years as may be specified in the articles.  Every director shall be eligible for reappointment.  The Directors of the Board are elected by the members in the Annual General Meeting.  The Board may co-opt one or more expert directors or additional directors not exceeding one fifth of the total number of directors.   The expert director and additional director shall hold the post for the period as prescribed in the articles.

Reserves:

i. Every producer company has to maintain a general reserve in every financial year.

ii. Where  there is no sufficient funds in any year for such transfer,

iii. The shortfall has to be made up by members’ contribution in proportion to their patronage in the business.

Members’ benefits:

i. Members will initially receive only such value for the produce or products pooled and supplied as the directors may determine.

ii. The withheld amount may be disbursed later either in cash or in kind or by allotment of equity shares.

iii. Members will be eligible to receive bonus shares.

iv. An interesting provision is for the distribution of patronage bonus [2](akin to dividend) after the annual accounts is approved — patronage bonus means payment out of surplus income to members in proportion to their respective patronage (not shareholding).

Audit:

i. Producer Companies shall carry out an internal audit of its accounts, at regular intervals in accordance with its articles of association and such an audit shall be carried on by a Chartered Accountant.

ii. The auditor shall make an annual audit report to the members of the company on the accounts examined by him

An unnecessary stipulation is that “without prejudice to the concerned sections in the Act,” the auditors of producer companies have to specially report on some additional items such as debts due and bad debts, verification of cash balances and securities, details of assets and liabilities, loans extended to directors and details of donations and subscriptions.

Striking of name

The Registrar shall strike the name of the Producer Company if the company fails to commence its business within one year from the date of registration or ceases it transactions after giving a notice to the company.  Any Member of the Producer Company is aggrieved against such order

CASE STUDY:

Vanilla India Producer Company Limited (Vanilco) is a new venture, promoted by Indian vanilla farmers to protect the long term interests of vanilla growers all over the country. Vanilco is a Producer Company with the twin objective of promoting vanilla production and processing vanilla as per international standards. Vanilco is owned by farmers and it works in tandem with them to produce and market the best vanilla beans and extracts. Its goal is to ensure a just and fair value for the farmers’ produce at par with the international markets and standards. The company procures, processes, benchmarks and markets the farmer’ produce and generates profits that are distributed to share holders as handsome dividends. Today Vanilco is recognized as one of the most reliable suppliers of natural Vanilla in the market, thanks to the technical know-how, quality of products, commercial expertise and knowledge of global markets.

CONCLUSION:

It can aptly be concluded that the intention behind insertion of the concept of Producer Company in Companies Act,1956 is to ensure a more beneficial and easy adaptable regulatory framework of such companies and it is to be well noted that whether it is a Producer Co-operative registered under Co-operative Societies Act, or a Producer Company under the Companies Act, they both serve for the common purpose as to serve its members and work for their betterment.

“PROMOTE INDIAN CULTURE; PROMOTE PRODUCER COMPANIES”

KEY POINTS FOR PRODUCER COMPANY:

 i.

The members have necessarily to be primary producers

 ii.

Name of the company shall end with the words “Producer Company Limited”.

 iii.

The limit of maximum number of members is not applicable to these Companies

 iv.

On registration, the producer company shall become as if it is a Private Limited Company for the purpose of application of law and administration of the company

 v.

Minimum No. of 10 member (individual).

 vi.

Share capital of a Producer Company shall consist of equity shares only

 vii.

Minimum 5 and not more than 15 directors

 viii.

Producer Company can carry only activity prescribed under the Act.

 ix.

Only of individuals, then voting rights shall be based on a single vote for every member.

 x.

A full time chief executive should (CEO) be appointed by the board.

(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)

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  • Dr. Arun Draviam

    Is that a producer company limited by share capital need not have a company secretary even though it must have a board of directors? I will be happy if it is so because, I do not subscribe to the very provision in any law (Company law included) that provides for a professional to be compulsorily on the rolls of that organization. If the services of company secretaries are appreciated by the market, automatically enterprises will seek to employ them.

  • Dr. Arun Draviam

    Is that a producer company limited by share capital need not have a company secretary even though it must have a board of directors? I will be happy if it is so because, I do not subscribe to the very provision in any law (Company law included) that provides for a professional to be compulsorily on the rolls of that organization. If the services of company secretaries are appreciated by the market, automatically enterprises will seek to employ them.