Relevant Section: Section 110

Relevant Rules: Rule 22 of the Companies (Management and Administration) Rules, 2014

Section-110 of the Companies Act, 2013

This section has the overriding effect over anything contained under the Act,

1. As per the section, notwithstanding anything contained in this Act-

a. In respect of such items of business as prescribed by Central Govt.

Rule 22(16) of the Companies (Management and Administration) Rules 2014.

The following business shall be considered  only by means of voting through a postal ballot-

1.  Alteration of the objects clause in  the memorandum of association of the Company

2. Alteration of articles of association in relation to insertion or removal of provisions which, under section 2(68) of the Act.

3. Change of registered office outside the local limits of any city, town or village

4. Change of  in objects,  for which a company has raised money from through prospectus and the money still unutilised

5. Issue of shares with differential rights.

6. Variation in the rights attached to a class of shares or debentures or other securities;

7. Buy-back of Securities by company

8. In Section 151 of the Act, Election of Director

9. Slump Sale

10. Inter-corporate Investment loan Guarantee u/s 186

b. in respect of any item of business, other than ordinary business and any business in respect of which auditors or directors  have a right to be heard at any meeting, considered by means of postal ballot, in such manner as may be prescribed as may be prescribed under the rules , instead of transacting such business at a general meeting.

2. If a resolution is assented by the requisite majority i.e 75% of the shareholders by means of postal ballot it shall be deemed to have been passed at a General Meeting.

Procedure

Rule 22 of the Companies (Management and Administration) Rules 2014.

Dispatch of Notice along with Draft resolution

1. Where a company is required to pass any resolution by way of postal ballot, it shall Dispatch a notice to all the shareholders,

2. along with a draft resolution and explanatory statements therefore

3. and requesting them to send their assent or dissent in writing on a postal ballot because postal ballot means voting by post or through electronic means within a period of 30 days  from the date of dispatch of the notice.

Modes of sending Notice

The notice shall be sent either –

  • by Registered Post or speed post, or
  • by Emails or
  • By Courier

Newspaper Advertisement

 An advertisement shall be published at least-

  • once in a Local newspaper in the principal local language of the district in which the registered office of the company is situated, and
  • at least once in English language in an English newspaper having a nation wide circulation in that district,
  • Specifying therein, inter alia, the following matters, namely:-
  • Statement mentioning t that the business is to be transacted by postal ballot which includes E-Voting;

√ the last date of sending of notices;

√ the date of starting of voting;

√ the date of end of voting;

√ the statement that any postal ballot received from the member after  the said date will be void  and voting whether by post or by electronic means shall not be allowed after the said date;

√ A statement to the effect that members, who have not received postal ballot forms may apply to the company and contact details of the person responsible to address the Complaints connected with the voting by postal ballot including voting by electronic means.

√ The notice of the postal ballot shall be posted on the website of the company

Appointment of Scrutinizer

1. The Board of directors shall appoint one scrutinizer,

2. who is not in employment of the company and

3. who,  can conduct the postal ballot voting process in a fair and transparent manner.

Ballot Paper shall be in the safe custody of the Scrutinizer

The Scrutinizer shall keep in his safe custody the postal ballot received back from shareholders.

Scrutinizer’s Report

A Report shall be submit by the Scrutinizer after last date of postal ballot but not later than 7 days.

Record shall maintain by the scrutinizer

A Register shall be maintained by the scrutinizer   either in in E-Form or In physically to record the consent or dissent of the shareholders.

i. name,

ii. Address,

iii. Folio number or

iv. Client ID of the shareholder,

v. number of shares held by them,

vi. nominal value of such shares,

vii. Whether the shares have differential voting rights, if any,

viii. Details in postal ballots are received in defaced or mutilated form and postal ballot forms which are void.

The Consent or dissent received after 30 days from the date of issue of notice shall be treated as if reply from the member has not been received.

The results shall be declared by placing it on the website of the company.

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