Delegation of power to invest
Yamini Lodha
Query pertaining to section 179 of CA 2013
Section 179(3) provides for BOD powers only to be exercised by means of resolution passed at a meeting of the board; namely:-
(d) to borrow monies
(e) to invest funds of the company
(f) to grant loans or give guarantee or provide security in respect of loans
Explanation under the said section provides as follows:
Explanation II.—In respect of dealings between a company and its bankers, the exercise by the company of the power specified in clause (d) shall mean the arrangement made by the company with its bankers for the borrowing of money by way of overdraft or cash credit or otherwise and not the actual day-to-day operation on overdraft, cash credit or other accounts by means of which the arrangement so made is actually availed of.
Further, section 117 provides that- A copy of every resolution or any agreement, in respect of matters specified in sub-section (3) together with the explanatory statement under section 102, if any, annexed to the notice calling the meeting in which the resolution is proposed, shall be filed with the Registrar within thirty days of the passing.
According to 117(3) (g) resolutions passed in pursuance of sub-section (3) of section 179.
Query : Whether, the board resolution passed for availing the Bank Guarantee to be furnished before court be covered u/s 179(3)(d) ?
Whether pledging of securities against BG will get covered under 179(3)(f) ?
Whether the investments of any sought shall be covered under section 179(3)(e)?
Since, the power to invest can be delegated to a Committee. In that event, only the resolution so delegating the powers would attract 179(3)(e) and only the said resolution can be filed instead of every investment?
Regards
YAMINI LODHA
ACS,LLB
sid
Praveen Reddy
Hi,
I need to appoint a director in an EGM. Has anyone got a checklist or the resolutions to be passed for this purpose?
Regards,
Praveen
santhosh kumar
Dear mr praveen is it for pvt or pub,
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Praveen Reddy
It is a private limited co.
NeH@ Bi$hNoI
As per Section 160 (1) of Companies Act, 2013:
If he, or some member intending to propose him as a director, steps involved. (He denotes “Additional Director”).
· Other Person or additional director himself at lease 14 days before the General Meeting left at the registered office of the company,
§ A Notice in writing under his hand signifying candidature as a director.
§ Along with the deposit of Rs. 1,00,000/- (Rupees One Lakh) rupees.
· The company shall, at least seven days before the general meeting, inform its members of the candidature of a person for the office of a director or the intention of a member to propose such person as a candidate for that office:
§ by serving individual notices, on the members through electronic mode to such members who have provided their e-mail addresses to the company for communication purposes, -
§ in writing to all other members
§ by placing notice of such candidature or intention on the website of the company, if any
Note: Provided that it shall not be necessary for the company to serve individual notices upon the members as aforesaid, if the company advertises such candidature or intention, at least seven days before the meeting at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situated, and circulating in that district, and at least once in English language in an English newspaper circulating in that district”.
After completion of above process:
Ø The company will pass “Ordinary Resolution” for appointment of such person as directors of the Company.
Ø File e-form DIR-12 for change in designation of director within 30 days of passing of Ordinary Resolution.
NeH@ Bi$hNoI
1. Appointment of XYZ as Director:
Consider and if thought fit, to pass with or without modification, the following resolution as Ordinary Resolution:
“RESOLVED THAT Mr. XYZ, who has been appointed as Additional Director on 29.08.2014 in terms of Section 161 of the Companies Act, 2013 and Article 25 of the Article of Association of the Company, who holds the office up to the date of this Annual General Meeting, and in respect of whom a notice has been received from him under Section 160 of the Companies Act, 2013, proposing his candidature for a office of Director, be and is hereby appointed as Director of the Company.”
Explanatory statement as per section 102 of the Companies Act, 2013:
In conformity with the provisions of Section 102 of the Companies Act, 2013, the following explanatory statement sets out all the material facts relating to the item of Special Business mentioned under item No. 4 of the Notice and the same should be taken as forming part of the Notice.
Mr. XYZ was appointed as an Additional Director by the Board of Director w.e.f. August 28, 2014 in accordance with the provisions of Section 161 of the Companies Act, 2013 and Article 25 of Article of Association of the Company.
Pursuant to Section 161 of the Companies Act, 2013 the Additional Director holds office up to the date of the ensuing Annual General Meeting. In this regard the Company has received request, in writing, from Mr. XYZ proposing his candidature for appointment as Director of the Company in accordance with the provisions of Section 160 and all other applicable provisions of the Companies Act, 2013
The Board feels that presence of Mr. XYZ on the Board is desirable and would be beneficial to the company and hence recommend to adopt the resolution.
None of the Directors, Key Managerial Personnel except Mr. XYZ are concerned or interested in this resolution.
The Board recommends the resolution to be passed as ordinary resolution.
