Annual general meeting

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

06 January 2013 Please Friends & Colleages..provide me your valuable suggestion...
One of the public company called its AGM on 29/09/2012.But due to non presence of required quorum, it could not be able to conduct its AGM.So it concluded to hold its AGM on 30/09/2012, which was a public holiday as it was a sunday. So please clarify me that the company has made a violation of any section of companies Act.
And it has also filed all its annual eforms with ROC with the AGM date of 30/09/2012. So in case of any notice from ROC regarding the holding of AGM on 30/09/2012, what is the position or points to be kept in front of that ROC's notice.

Ajay Mishra

Ajay Mishra (Expert)
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07 January 2013 Hi

Annual General Meeting cannot be held on a public holiday
Section 166(2) inter alia states that every annual general meeting shall be called on a day, which is not a public holiday.
It has been clarified by the Department vide Circular F. No. 8/23/(166)/69-CL-V that section 166 of the Companies Act deals with the actual period during which the annual general meeting is to be held. Sub-section (2) states that every annual general meeting shall be held on a day that is not a public holiday and this provision is mandatory. If the provision of section 166(2) are to be considered as 'merely regulatory' as suggested "shall be called" used in the section will ceased to have any meaning.

According to section 2(38) of the Companies Act, 1956 'public holiday' means a public holiday within the meaning of the Negotiable Instruments Act, 1881. Further, proviso to section 2(38) enacts that a day declared to be a public holiday by the Central Government shall not be a public holiday in relation to any meeting provided the declaration of holiday was notified after the issue of notice of convening such meeting. Provided that the holiday declared by banks for closure of half yearly accounts under the Negotiable Instruments Act, shall not be considered as a public holiday for the purpose of holding an annual general meeting.

Ajay Mishra

Ajay Mishra (Expert)
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07 January 2013
Adjourned annual general meeting may be held on a public holiday

The Department has vide Circular File No. 8/16(1)/61-PR stated that there is no contravention of section 166(2) if the adjourned annual general meeting comes to be accidentally held on a public holiday.

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Querist : Anonymous

Querist : Anonymous (Querist)

07 January 2013 bt sir i want to clarify that, can the board of director of the said company put a point in front of ROC that the AGM held on 30/09/2012 is the adjourned meeting of original AGM called on 29/09/2012, and thus is not a contravention of any section of the companies Act,1956. Since in law it is said and u have also commented in the previous reply that an adjourned AGM can be validly held on a public holiday, so in my case, is it falling in the same case? means is it a valid AGM on 30/09/2012, since the company has to hold its AGM on 30/09/2012 as it has no other way but to hold on 30/09/2012.

Ajay Mishra

Ajay Mishra (Expert)
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07 January 2013
Prosecution and penalty for non-compliance

Where the company has defaulted under section 156 and/or 210 of the Companies Act, 1956, that is, where they have not held the annual general meeting and/or have not placed the balance sheet and the profit and loss account before the annual general meeting, prosecutions are rarely launched. The fact that the complaint has to be filed in the court of first class Magistrate having territorial jurisdiction over the place at which the Registered office of the company is situated, which is at the place other than the Head Quarter of the Registrar need not prevent the Registrar from enforcing the penal provision in this regard.
Section 168 contains penal provision for not complying with the provisions of section 166 or 167. It provides that if default is committed in holding the annual general meeting of the company, the company and every officer of the company who is in default shall be punishable with fine which may extend to Rs. 50,000 and if the default is continuing one then with further fine extending upto Rs. 2,500 for every day after the first day during which the default continues.
However, if the books of accounts have been ceased by the police and produced in criminal court, the default is beyond the control of the company and should not be punished.
Failure to hold the meeting in each calendar years is a separate offence different from failure to had it within 15 months of the earlier meeting.
In State of Kerela v West Coast Planters Agencies (P) Ltd. (1958) 28 Comp Cas. 13 (Ker) (DB) it was held that where there was only a single member in a company then not holding the AGM would not amount to a default.
In ROC v Krishna Nambiar (1958) Comp Cas 225, it was held that if there was any default in holding AGM the company immediately becomes punishable but for an officer of the company to be punished it is necessary to prove that he was knowingly responsible for the default.

Ajay Mishra

Ajay Mishra (Expert)
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07 January 2013 Hi

Please check what your Company articles says, about adjournment of General meeting.

Querist : Anonymous

Querist : Anonymous (Querist)

07 January 2013 SIR THANKS FOR YOUR SUGGESTION....But please suggest me that what the company should do now...
The said company has shown AGM date as 30/09/2012 for the year 31/03/2012 and has also filed its all annual e-forms in which showing the AGM date as 30/09/2012. And now it has received a show cause notice from ROC for holding AGM on 30/09/2012. So wat is the position or points that the company can put in front of ROC...

Ajay Mishra

Ajay Mishra (Expert)
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07 January 2013 Hi

You can present the minutes of AGM hold on 29/09/2012 and details that the quorum was not present.

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Querist : Anonymous

Querist : Anonymous (Querist)

07 January 2013 If the company presents the required minutes to ROC and states that due to non presence of the quorum it adjourned its meeting on 30/09/2012 which is a public holiday, then in that case do company’s position is clear from all section of companies Act. Means will that satisfy the ROC for holding an AGM on Sunday, as it has accidently falls on a public holiday, and thus the company has satisfied with every applicable sections of the Act. In companies Act, there is not a particular definition of ‘ Accidently falls on public holiday’….

Querist : Anonymous

Querist : Anonymous (Querist)

07 January 2013
Sir, I had once again gone through the provisions of the companies Act and what I found is that:-
1) If the company could not be able to held its AGM due to non-presence of quorum, then the meeting is adjourned to the same day in next week or the day which the board decides..
2) An adjourned AGM can be held on a public holiday, if it falls accidently.
3) and most important that every company has to hold its AGM within 6 months from the end of its financial year.
Now Sir, please help me while suggesting me that
1) Do my case falls ACCIDENTLY on a public holiday? since the company has to hold its meeting on 30/09/2012 for complying with the provision of co.s Act.
2) Can the company fall into debate with this with the ROC, since if the company turns out to be in wrong side, then it may has to face hefty penalties…
So please suggest me a SOLUTION……..

Ajay Mishra

Ajay Mishra (Expert)
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07 January 2013 Hi

Please read my earlier reply, adjourn meeting on public holiday is possible and meaning of public holiday is given above.

Querist : Anonymous

Querist : Anonymous (Querist)

07 January 2013

Sir, I agree with you….
Adjourned meeting can be held on public holiday. But the Companies Act says that it can be held if it falls accidently on a public holiday. And so I need to clarify that in my case does it falls accidently or not?

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