The Ministry of Corporate Affairs (MCA) vide its general circular no. 14/2020 dated April 8, 2020 has issued a clarification for passing special and ordinary resolutions by companies under the Companies Act, 2013 (Act) and rules made thereunder on account of threat posed by COVID-19.

MCA vide this clarification allows the companies to take all the decisions of urgent nature requiring the approval of members, other than items of ordinary business or business where any person has a right to be heard, through the mechanism of postal ballot/ e-voting in accordance with the provisions of the Companies Act, 2013 and rules made thereunder, without holding an extraordinary general meeting (EGM), which requires physical presence of members at a common place.

As the Act doesn’t contain any specific provision allowing convening of general meetings through video conferencing (VC) or through other audio visual means (OAVM) this circular allows the holding of an EGM by any company, where it is considered unavoidable, for conducting such EGM on or before 30th June, 2020 by adhering to the following conditions in addition to the requirements of the Act:

No. Particulars For companies which are required to provide the facility of e-voting or any other company which has opted for such facility For companies which are not required to provide the facility of e-voting
1 Applicability Any company can hold EGM wherever unavoidable through VC or OAVM and the recorded transcript of the same shall be maintained in safe custody by the company. In case of a public company, the recorded transcript of the meeting, shall as soon as possible, be also made available on the website (if any) of the company.
General Comment This Circular allows the convening of EGM through VC or OAVM NOT ANNUAL GENERAL MEETING (AGM)
2 Essential Care to be taken by the company a) Convenience of different persons positioned in different time zones shall be kept in mind before scheduling the meeting.

b) To ensure that such meeting allows two way teleconferencing or webex for the ease of participation of the members; and

c) The participants are allowed to pose questions concurrently or given time submit questions in advance on the e-mail address of the company.

d) The facility for joining the meeting shall be kept open at least 15 minutes before the time scheduled to start the meeting and shall not be closed till the expiry of 15 minutes after such scheduled time.

e) Attendance of members through VC or OAVM shall be counted for the purpose of reckoning the quorum under section 103 of the Act.

f) The facility of appointment of proxies by members will not be available for such meeting.

g) At least one independent director (where the company is required to appoint), and the auditor or his authorized representative, who is qualified to be the auditor shall attend such meeting through VC or OAVM.

h) Where institutional investors are members of a company, they must be encouraged to attend and vote in the meeting through VC or OAVM.

i) In pursuance of sections 112 and 113 of the Act, representatives of the members may be appointed for the purpose of voting through remote e-voting or for participation and voting in the meeting held through VC or OAVM.

3 Participants The facility provided by the company should have the capacity to allow 1000 members to participate on first come and first served basis. The facility provided by the company should have the capacity to allow 500 members or members equal to the total number of members of the company (whichever is lower) to participate on first come and first served basis.
General Comment Although the guidelines aim to simplify the procedures however, they are additional and primary provisions of the Act are to be mandatorily followed. Practically, connecting so many members is going to be a task for all the companies who lack such infrastructure and there are chances many members (retailers) won’t be able to connect because of the principle first come first served.
4 Exceptions to the First come first serve principle The following persons are excluded from first-come-first-served principle:

  • Large shareholders (i.e. shareholders holding 2% or more shareholding);
  • Promoters;
  • Institutional Investors;
  • Directors;
  • Key Managerial Personnel;
  • The Chairpersons of the Audit Committee, Nomination and Remuneration Committee and Stakeholders Relationship Committee;
  • Auditors etc.
General Comment Scrutinisers have not been included in the list by the MCA
5 Chairperson of the Meeting Unless the Articles of the Company specifically provide for the appointment of  Chairperson of the meeting, the  chairperson will be appointed in the following manner:

  • Where there are less than 50 members present at the meeting, the Chairperson shall be appointed in accordance with Section 104 of the Act;
  • In all other cases, the Chairperson shall be appointed by e-voting.
Unless the Articles of the Company specifically provide for the appointment of  Chairperson of the meeting, the  chairperson will be appointed in the following manner:

  • Where there are less than 50 members present at the meeting, the Chairperson shall be appointed in accordance with Section 104 of the Act;
  • In all other cases, the Chairperson shall be appointed by poll through email.
6 Proxy Section 105 provides the facility of appointment of proxies by members to attend and vote in the meeting. As this meeting will be convened through VC or OAVM, the facility of proxies will not be available for such meeting.
7 Notice All the companies are required to adhere to this circular in addition to the requirements of the Act. Accordingly, no relaxation has been provided and notices have to be sent in accordance with the provisions of the Act.

The following things shall be mentioned in the notice of general meeting:

  • Disclosures with regard to the manner in which framework provided in the Circular;
  • Clear instructions on how to access and participate in the meeting;
  • Company to provide a helpline number through the RTA, technology provider, or otherwise, for those shareholders who need assistance with using the technology before or during the meeting.
  • Inspection of documents mentioned in notice, shall be provided through electronic means.

A copy of the notice shall also be prominently displayed on the website of the company and due intimation may be made to the stock exchanges in case of a listed company.

In case a notice for meeting has been served prior to the date of MCA Circular (i.e. 08th April, 2020), the framework proposed in the Circular may be adopted for the meeting, by sending a fresh notice of shorter duration with due disclosures in consonance with the Circular subject to receipt of shorter consent in accordance with Section 101(1) of the Act.

General Comment Considering the practical difficulties involved in the process, MCA may consider to grant some relief in this respect otherwise holding of meeting in such manner would be practically impossible.
8 Attendance Attendance of members through VC or OAVM shall be counted for the purpose of reckoning the quorum under section 103 of the Act.
General Comment Counting of members who are attending the meeting will be a cumbersome task. It is better if the companies come up with a method for  e-attendance.
9 Voting
  • Only those members, who are present in the meeting through VC or OAVM and have not cast their vote on resolutions through remote e-voting and are otherwise not barred from doing so, shall be allowed to vote through e-voting system or by a show of hands in the meeting
  • During the meeting the Chairperson shall ensure the facility of e-voting is available for conducting the poll in the meeting and the voting shall be conducted in the following manner:

-If number of present is less than 50, then by way of e-voting or show of hands

– In all other cases, by e-voting

  • Before the actual date of the meeting, the facility of remote e-voting shall be provided in accordance with the Act and the rules.
  • The company shall provide a designated email address to all members at the time of sending the notice of meeting. The confidentiality of the password and other privacy issues associated with the designated email address shall be strictly maintained by the company at all times.
  • During the meeting, where a poll on any item is required, the members shall cast their vote on the resolutions only by sending emails through their email addresses whish are registered with the company. The said emails shall only be sent to the designated email address circulated by the company in advance;
  • If number of members present are less than 50, then by way of show of hands unless poll is demanded
  • In all other cases, by poll.
  • Poll will take place by way of email.
  • In case the counting of votes requires time, said meeting may be adjourned and called later to declare the result.
10 Necessary Fillings All resolutions passed (whether ordinary or special) in accordance with this mechanism shall be filed with the Registrar of Companies within 60 days of the meeting, clearly indicating therein that the mechanism provided in the MCA Circular dated 08th April, 2020 alongwith other provisions of the Act and rules were duly complied with during such meeting.

Conclusion

In these tough times MCA giving relaxations to convene meetings through VC or OAVM is certainly a boon as it will provide the companies an aid to conduct their matters on regular basis in this lockdown. This scheme is providing time upto June 30, 2020 and in case companies choose to follow this method to convene the meetings they have to comply with these guidelines in addition to the provisions relating to the general meeting . The provision of conducting meeting through the VC or OAVM for urgent matters is another major relief. For any clarification or advise, please write back to us at info@bmcadvisors.in.

Disclaimer:

The information contained in this article is general in nature, and should not be construed as legal or other advice. In all cases, the reader must consult with the professional advisors having expertise on the matter.   We are not responsible for any errors or omissions, or for the results obtained from the use of this information. All information in this site is provided “as is”, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information.

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Qualification: LL.B / Advocate
Company: BMC Advisors, Advocates
Location: New Delhi, IN
Member Since: 07 Apr 2020 | Total Posts: 2
Sushma, Managing Partner BMC Advisors, Advocates, a full fledged law firm, brings in over 15 years of unmatched experience in the field of corporate law, commercial legislations, startups, mergers and acquisitions. A graduate from prestigious Shri Ram College of Commerce and a Fellow Member of View Full Profile

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