AGM held on 30th Sept 2012, a Sunday.
Nitesh More
THREE REASONS: WHY CAN AGM BE HELD ON SUNDAY
1) Sunday is not a public holiday. Sunday had not been notified by Central Government as Public holiday. What is there in the Negotiable Instrument Act is least important for Companies Act, 1956. Even, Companies Bill, 2012 specifically mentioned that AGM can’t be held on a National Holiday notified by Central Government.
2) Attention is invited to letter no 8/5/1669/65-PR dated 21-1-1963, which does not make it absolute compulsory for every company to held AGM on a day which is not a public holiday. Kindly refer proviso 2 to sec 166, which enables a company to fix time and date of AGM. Companies which followed the procedure prescribed by proviso 2 to sec 166 can held AGM on Sunday.
3) For adjourned AGM, there is separate circular, which enables to hold adjourned AGM on Sunday too.
CA Nitesh More
9883157484
Kalidas Ramaswami
I would therefore reiterate my earlier views on this issue.
regards
kalidas
Date: Tue, 30 Apr 2013 16:28:07 +0530
Subject: [CA RUNGTA PD] AGM held on 30th Sept 2012, a Sunday.
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KIRTI TULSYAN
THREE REASONS: WHY CAN AGM BE HELD ON SUNDAY
1) Sunday is not a public holiday. Sunday had not been notified by Central Government as Public holiday. What is there in the Negotiable Instrument Act is least important for Companies Act, 1956. Even, Companies Bill, 2012 specifically mentioned that AGM can’t be held on a National Holiday notified by Central Government.
2) Attention is invited to letter no 8/5/1669/65-PR dated 21-1-1963, which does not make it absolute compulsory for every company to held AGM on a day which is not a public holiday. Kindly refer proviso 2 to sec 166, which enables a company to fix time and date of AGM. Companies which followed the procedure prescribed by proviso 2 to sec 166 can held AGM on Sunday.
3) For adjourned AGM, there is separate circular, which enables to hold adjourned AGM on Sunday too.
CA Nitesh More
9883157484
COMMENT 1
I would therefore reiterate my earlier views on this issue.
regards
kalidas
Public Holiday as per Negotiable instruments Act has no relevance to the Public Holiday in companies Act. If at all, the dictionary meaning has to be taken. Sunday cannot be presumed to be Public Holiday. Further proviso (a) and (b)under section 166(2) allows the liberty of fixing the time and place of AGM and time includes everything, date, month, year etc.. Section 166(2) states that AGM should not be held on a public holiday and the provisos under the above subsection referred to above provides for exceptions. Further, the circulars referred to are only applicable to adjourned meetings and not to the original meeting. However, the meeting can be said to have concluded only on adjourned meeting and not on original meeting. The conclusion of meeting gives rise to various obligations as to the time limitations of filing the documents. In this case, the circular is not overriding the provisions, but only clarifying the same.
JNGupta
9331022920
NEW COMMENT 2
It is incorrect to state that 'public holiday' is not defined. It is defined
in clause (38) of section 2 of the Companies Act, 1956 as :
'Public holiday' means a public holiday within the meaning
of the Negotiable Instruments Act, 1881.
Provided that no day declared by the Central Government to
be a Public holiday shall be deemed to be such a holiday, in relation to any
meeting, unless the declaration was notified before the issue of the notice
convening such meeting.
Explanation to Section 25 explicitly states 'The expression "public holiday'
includes Sundays and any other day declared by the Central Government, by
notification in the Official Gazette, to be a public holiday.'
So in any case 'Sunday' is a public holiday for the purposes of the
Companies Act also.
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Kalidas Ramaswami
please note that Section 2(38)of the companies act defines a public holiday to mean a publuc holiday under the NI Act.As per the NI Act public holiday include every sunday.It is therefore wrong for you to say that the definition in the NI Act has no relevance where the companies Act is concerned since the companies act itself defines the term and the same has to be imported from the NI Act.
Secondly the definition under Section 2(38)contains a proviso to protect a situation where after the issue of notice for a General Meeting on a particular date the said date is subsequently notified as apublic holiday.In such a case the Company will be allowed to proceed with the meeting on the date declared by it earlier.
As regards the provisos (a) and (b) in Section 166(2) a company is allowed only the liberty to fix the time and place for the Meeting.The expressions "time" and "day" legally are not one and the same.The term"day" has been defined in the Legal lexicon by Ramanatha Aiyar to mean"a period of 24 hours beginning at Midnight".The term "Time"as a measure of duration".Hence "day" and "time" are not synonimous with each other.Therefore the above subsection does not allow the members to fix the day for holding the general meeting.As suggested by you i have gone thru properly both the circulars mentioned by you.the circular dated 9th May 1961 applies only to an adjourned meeting.it only protects the company if the adjourned meeting is accidentally held on a public holiday.
The other circular dated 21.1.1963 is legally not tenable as it contradicts Section 166(2) which provides expressly that the meeting cannot be held on a public holiday.
You have said that benevolent circulars are to be interpreted in a manner favouring the Company/assessees.I am aware of this legal position.Allowing a company to hold its AGM on a public holiday is never going to be to the advantage of the common shareholder since he may be disinclined to venture out for a company meeting on a sunday.Infact promoters with malafide intentions may be tempted to hold meetings on a sunday merely to discourage members from attending.hence it is inappropriate to say that the second circular acts to the advantage of the shareholder whose protection is the ultimate objective of the legislation.
It is also a settled principle that when a provision is unambiguous it would be inappropriate to import meaning which is beyond the obvious.section 166(2)expressly provides that an AGM cannot be held on a public holidayand sunday is a public holiday.End of the story .
I rest my case on the above and do not wish to join issue on this any more as i am afraid the arguements used are becoming acrimonous.
regards
kalidas
Date: Fri, 3 May 2013 23:25:19 -0700
From: moreas...@gmail.com
To: foru...@googlegroups.com
Subject: [CA RUNGTA PD] Re: AGM held on 30th Sept 2012, a Sunday.
1) Kindly refer to letter no 8/5/1669/65-PR dated 21-1-1963, which does not make it absolute compulsory for every company to held AGM on a day which is not a public holiday. For adjourned meeting, there is separate(another) circular. This is another circular.Kindly study this circular properly , than we will further discuss.
I would therefore reiterate my earlier views on this issue.
regards
kalidas