Section 44 of the Companies Act, 2013 the shares or debentures or other interest of any member in a company shall be movable property transferable in the manner provided by the articles of the company.

Sub-section 2 of Section 58 of the Companies Act, 2013 provides that the securities or other interest of any member in a public company shall be freely transferable.

The concept of free transferability of shares in a public and private company is discussed in the case of WESTERN MAHARASHTRA DEVELOPMENT CORPORATION LTD. Vs. BAJAJ AUTO LTD; it was held that the Company Act makes a clear distinction regarding the transferability of shares relating to private and public companies. By its definition, a ‘private company’ is a company, which restricts the right to transfer its shares. In the case of a public company, the Act provides that the shares or debentures and any interest of the company are freely transferable.

Section 56 of the Companies Act, 2013 read with Rule 11 of the Companies (Share Capital and Debentures) Rules, 2014 provides that a company shall not register a transfer of securities of the company, or the interest of a member in the company in the case of a company having no share capital, other than the transfer between persons both of whose names are entered as holders of beneficial interest in the records of a depository, unless a proper instrument of transfer in Form SH-4 duly stamped, dated and executed by or on behalf of the transferor and the transferee and specifying the name, address and occupation, if any, of the transferee has been delivered to the company by the transferor or the transferee within a period of sixty days from the date of execution, along with the certificate relating to the securities, or if no such certificate is in existence, along with the letter of allotment of securities.

In VARDHMAN PUBLISHERS LTD. V. MATHRUBHUMI PRINTING & PUBLISHING CO. LTD held that affixing stamps on a separate sheet of paper and attaching it to the transfer application or cancellation of stamps by drawing a line across the stamp was not improper and would not invalidate the said application.

Where the instrument of transfer has been lost or the instrument of transfer has not been delivered within the 60 days, the company may register the transfer on such terms as to indemnity as the Board may think fit.

Sub-Section 3 of Section 56 of the Companies Act, 2013 provides that where an application is made by the transferor alone and relates to partly paid shares, the transfer shall not be registered, unless the company gives the notice of the application in Form SH-5 to the transferee and the transferee gives no objection to the transfer within two weeks from the receipt of notice.

Every company shall deliver the certificates of all securities transferred within a period of one month from the date of receipt by the company of the instrument of transfer.

In case of listed companies, Shares in physical form became illiquid w.e.f., 01.04.2019. In other words, transfer of shares in physical form is not allowed w.e.f. 01.04.2019. For more clarity on the subject, have a look on my article “Provisions w.r.t., Duplicate Share Certificate for Listed Company are still relevant?

Link of the article: https://taxguru.in/company-law/provisions-w-r-t-duplicate-share-certificate-listed-company-relevant.html

PROCEDURE FOR TRANSFER OF SECURITIES IN PHYSICAL MODE

  • Instrument of transfer of securities in Form SH-4 should be executed by or on behalf of the both transferor and transferee.
  • The transferor or transferee shall deliver the instrument of transfer to the company within 60 days from the date of execution, along with the certificate relating to the securities.
  • Every transfer must be placed before the Board or Committee or an officer authorized by the Board for approval of transfer.
  • In case of transfer of partly paid securities, company may send a notice to the transferee for obtaining consent.
  • In case a signature of transferor does not match with the records of the company, then the Board may obtain necessary indemnity from the transferor.
  • Make necessary entries in the register of members Form MGT-1 or in the register of debenture holders/ other securities holder Form MGT-2 within 7 days from the date of Board/ Committee approval.
  • Enter the detail of transfer on the back of certificate of securities and deliver the certificate of securities within 1 month from the date of receipt of the instrument by the company.
  • Where transfer of capital instrument from resident to non-resident or vice-versa, the resident buyer/ seller shall file Form FC-TRS within 60 days from the date of transfer of such instrument or receipt/ payment of funds, whichever is earlier. [Foreign Exchange Management (Transfer or Issue of Securities by a Person Resident outside India) Regulations, 2017]

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DRAFT RESOLUTION FOR TRANSFER OF SECURITIES IN PHYSICAL MODE

“RESOLVED THAT pursuant to the provisions of section 56 and other applicable provisions, if any, of the Companies Act, 2013 read with rules made thereunder (including any statutory modification(s) or re-enactment thereof for the time being in force) and pursuant to Article ___________ of Articles of Association of the Company, the approval of the Board be and is hereby accorded to the transfer of ____________ shares of Rs. _______ each in the following manner:

Name of the transferor Folio No. of the Transferor Name of the Transferee Folio number of the transferee Share certificate No. No. of shares along with distinctive no.

RESOLVED FURTHER THAT Mr./Ms. _________, director and __________, Company secretary of the Company be and are hereby jointly/ severally authorized to authenticate the said transfer and to sign and endorse the share certificate in favour of the transferee and to do all such acts, deeds, matters and things as may be necessary, desirable, proper or expedient for the purpose of giving effect to this resolution and for matters connected therewith or incidental thereto.”

 (Any query and suggestion kindly contact the author at: sandy673711@gmail.com or +918077133617)

Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness, and reliability of the information provided, I assume no responsibility, therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not professional advice and is subject to change without notice. I assume no responsibility for the consequences of the use of such information.

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