Policy for preservation of Documents under Regulation 9 of SEBI (LODR) Regulations, 2015

Regulation 9 of the SEBI (LODR) Regulations, 2015 deals with the documents which a listed entity needs to keep. Nowadays, maintaining records is very important and prior to this provision there was a lack of proper  mechanism of documents management. However, this provision is a step forward in introducing proper document management system. The category of documents are broadly divided in three parts-

1. Documents required to be maintained permanently

2. Documents required to be maintained for a minimum period of 8 years

3. Documents which are required to be maintained for less than 8 years.

It is to be noted that in case of any legal proceeding, the documents shall be preserved for the minimum period as directed by the court or any authority etc. Following set of actions are to be kept in mind-

1. Identify the documents to be preserved permanently or minimum 8 years or less than 8 years.

2. Make a draft policy on preserving the same.

3. To place the draft policy before the Board of Directors for their approval.

4. To place the register of destroyed documents before the Board.

5. To make sure necessary action is taken for the preservation of documents.

Draft Format of Policy for preservation of Documents

___________________Limited

Policy for preservation of Documents

1. Background:

Regulation 9 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 requires every listed Company to formulate a policy for preservation of documents. The board of directors of the Company at its meeting held on__________ approved this policy for preservation of documents. The policy shall be effective from_____________.

2. Objective:

Various laws require an entity to maintain certain documents either permanently or for a specified period of time. The objective of the policy is to provide a framework for the purpose of preservation of documents and their destruction after the statutory period of preservation is over and documents are no longer required. In terms of Regulation 9 of the Listing Regulations, for the purpose of preservation, the documents under the policy are to be classified as:

1. Documents to be preserved permanently.
2. Documents to be preserved for a period of not less than 8 years.

3. Objectives:

i. “Board” means the Board of Directors of the Company

ii. “Company” means ________________ Limited unless the context otherwise provides.

iii. “Compliance Officer” means compliance officer appointed in terms of regulation 6 of the Listing Regulations.

iv. “Document” includes a memorandum, summons, order of a judicial regulatory or administrative authority, an email, a contract, registers maintained by the company under the provisions of a statute, books of account, a payment voucher, minutes of the meeting of the members or board of directors or any committee of board of directors or management, returns or reports filed with statutory authorities or the regulators, tax records, press release, etc.

v. “Listing Regulations” means the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015.

vi. “Year” means a period of 12 months beginning on 1^st April and ending on 31^st March of the subsequent calendar year.

Other terms used in the policy but not specifically defined here shall have the same meaning assigned to them in the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 or the Securities and Exchange Board of India Act, 1992 or the Securities Contracts (Regulation) Act, 1956 or the Depositories Act, 1996 or the Companies Act, 2013 and the rules and regulations and thereunder, as the case may be or in any amendment thereto.

4. Preservation of Documents

The company shall preserve all its documents, whether maintained and preserved in physical or electronic mode, as per the requirements and provisions of the Companies Act, 2013, the Secretarial Standards, Securities and Exchange Board of India Act, 1992, Depositories Act, 1996, Listing Regulations, various tax related and employment related laws and other laws, rules or regulations as may be applicable to the company. For the purpose of preservation, documents are classified under three categories-

i. Documents which are required to be preserved permanently (Schedule A).

ii. Documents which are required to be preserved for not less than 8 years after completion of the relevant transaction (Schedule B).

iii. Documents with preservation period other than those mentioned in schedule A and schedule B shall be preserved in accordance with the provisions of applicable laws, rules, regulations etc. or as determined by the respective head of the department in writing. (Schedule C).

If a law suit or any other proceeding involving the Company is pending or reasonable foreseeable, the documents relevant to such litigation or proceeding shall be retained and preserved as per the directions of the Court, Tribunal or Adjudicating Authorities. All retention periods under the policy shall be suspended with respect to such documents.

Where under a scheme of arrangement another company merges or amalgamates with the Company, minutes of all the meetings of the transferor company and its incorporation documents, i.e. certificate of incorporation, certificate of commencement of business, memorandum and articles of association etc. as handed over to the company shall be preserved permanently. Office copies of notices, agendas and notes on agenda, scrutinizers report and other related papers of the transferor company shall be preserved for as long as they remain current or for eight financial years whichever is later.

5. Custody of Documents:

The documents shall be kept in the custody of respective head of the department responsible for creation and maintenance of such documents. Place of keeping the documents shall be as per the applicable provisions of laws, rules or regulations under which they are created and shall be subject to specific resolutions passed by the Board from time to time.

6. Destruction of Documents

After the expiry of statutory retention period, the preserved documents, if no longer required, may be destroyed. Documents which are duplicate, unimportant or irrelevant and are not required to be preserved under any provision of law may be destroyed as a normal routine administrative action. The documents can be destroyed as under:

i. recycle non confidential paper records

ii. shred or otherwise render unavailable confidential paper records or

iii. delete or destroy electronically stored data.

Before destruction the approval of the head of the department and the compliance officer shall be obtained. The company shall maintain a register under the custody of the compliance officer, for recording documents destroyed. The register shall be named as ‘Register of documents destroyed’ and shall be preserved permanently. The register shall be placed before the board of directors on a half yearly basis for perusal and noting by the directors. The register shall contain the following details:

i. Serial Number

ii. Brief particulars of the document destroyed

iii. Department responsible for creation and maintenance of documents

iv. Date of approval of the head of the department

v. Date of approval of the compliance officer

vi. Date of destruction

vii. Mode of destruction

viii. Remarks, if any

ix. Signature of the compliance officer.

7. Monitoring, Review and Amendment:

Compliance officer shall ensure proper implementation of the policy and shall lay down monitoring mechanism for its compliance. The head of respective departments shall ensure preservation of documents in accordance with the applicable laws, rules, regulations etc. They shall confirm compliance of the policy to the compliance officer on annual basis and in turn the compliance officer shall confirm the compliance of the policy to the board.

The policy shall be reviewed annually jointly by the managing director and the compliance officer. The policy shall also be reviewed as and when required to ensure that it meets the objectives of the statutory provisions and remain effective. Any amendments to the policy which are deemed necessary on its review shall be placed before the board for its approval. However, in case of conflict between the provisions of the policy and statutory provisions, the latter shall prevail over the former. Any subsequent modification or amendment to the statutory provisions shall automatically apply to the policy.

Schedule A

List of documents to be preserved permanently

S.No	Particulars of Documents	Department responsible
1.	Certificate of Incorporation	Secretarial
2.	Certificate of commencement of business	Secretarial
3.	Memorandum and Articles of Association	Secretarial
4.	Minute books of general, board and committee meetings	Secretarial
5.	Following registers maintained by the company- i. Register of members and other security holders. ii. Foreign register of members. iii. Register of transfer, transmission of securities iv. Register of renewed and duplicate share certificates v. Register of Director and Key Managerial Personnel vi. Register of Director shareholding vii. Register of contract in which directors are interested viii. Register of charges ix. Register of loans, guarantee and securities x. Register of investments made by the company xi. Register of investments not held in its name by the company xii. Register of documents executed under common seal xiii. Attendance register of the meetings of the board and its committees	Secretarial
6.	Policies, charter and code of the Company	Secretarial
7.	Application for issue and listing of securities	Secretarial
8.	Title documents	Legal
9.	License, documents, approvals etc. received from any government or regulatory authority	Legal
10.	Intellectual property documents	Legal
11.	Orders, Judgments of court or any adjudicating authority	Legal

Schedule B

List of documents to be preserved for not less than 8 years

S.No	Particulars of Documents	Department responsible
1.	Notices, agenda and notes on agenda of board and committee meetings	Secretarial
2.	Copies of notices, scrutinizer report and other documents related to shareholder/creditor meetings	Secretarial
3.	Instruments evidencing creation of charges or modification	Secretarial
4.	Annual financial statements	Secretarial
5.	Notice of interest received from the directors or the key managerial personnel	Secretarial
6.	Disclosure under vigil mechanism	Secretarial
7.	Disclosure to be made to the stock exchange under regulation 30 of the listing regulations	Secretarial
8.	Following registers are not to be maintained permanently- i. Register of deposits ii. Register of allotment iii. Register of payment of dividend iv. Register of proxies v. Register of inspection vi. Register of investor complaints vii. Register of sweat equity shares viii. Register of employee stock option ix. Register of postal ballot	Secretarial

Schedule C

List of documents with preservation period other than those mentioned in Schedule A and Schedule B

S.No	Particulars of Documents	Department responsible
1.	Documents governed by the jurisdiction of foreign country	Concerned department to which the document belongs.

(Author can be reached at Email id: varadagrawal1@gmail.com)