Section 101 of the Companies Act, 2013 prescribes that general meeting of a company may be called by giving not less than clear 21 days notice either in writing or through electronic mode in such a manner as may be prescribed.
Section 101 of the Companies Act , 2013 is reproduced below for quick reference :
101. (1) A general meeting of a company may be called by giving not less than clear twenty-one days' notice either in writing or through electronic mode in such manner as maybe prescribed:
Provided that a general meeting may be called after giving a shorter notice if consent is given in writing or by electronic mode by not less than ninety-five per cent. of the members entitled to vote at such meeting.
(2) Every notice of a meeting shall specify the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting.
(3) The notice of every meeting of the company shall be given to -
(a) every member of the company, legal representative of any deceased member or the assignee of an insolvent member;
(b) the auditor or auditors of the company; and
(c) every director of the company.
(4) Any accidental omission to give notice to, or the non-receipt of such notice by, any member or other person who is entitled to such notice for any meeting shall not invalidate the proceedings of the meeting.
Rule 18 of the Companies (Management and Administration) Rules, 2014 prescribes conditions to be complied with in case a company elects to send the notice by electronic means.
As per the Rule 18 , in case company elects to send the notice by electronic mode , then it has to send the notice to all the members who have provided electronic mail address to the company .
Further to ensure that every member has provided electronic mail address to a company, the company shall provide an advance opportunity at least once in a financial year, to the members to register their e-mail address with the company who has already not provided for the same.
Rule 18 also provides that in case of failure of transmission of email, company has to resend the email to the members .
Rule 18 further provides that the company shall not be in default for not delivering notice of meeting via e-mail in case member entitled to receive notice fails to provide or update relevant e-mail address to the company, or to the depository participant as the case may be.
Rule 18 of the Companies (Management and Administration) Rules, 2014 is reproduced below for quick reference .
18. Notice of the meeting.-
(1) A company may give notice through electronic mode.
Explanation: For the purpose of this rule, the expression ''electronic mode'' shall mean any communication sent by a company through its authorized and secured computer programme which is capable of producing confirmation and keeping record of such communication addressed to the person entitled to receive such communication at the last electronic mail address provided by the member.
(2) A notice may be sent through e-mail as a text or as an attachment to e-mail or as a notification providing electronic link or Uniform Resource Locator for accessing such notice.
(3) (i) The e-mail shall be addressed to the person entitled to receive such e-mail as per the records of the company or as provided by the depository:
Provided that the company shall provide an advance opportunity atleast once in a financial year, to the member to register his e-mail address and changes therein and such request may be made by only those members who have not got their email id recorded or to update a fresh email id and not from the members whose e-mail ids are already registered.
(ii) The subject line in e-mail shall state the name of the company, notice of the type of meeting, place and the date on which the meeting is scheduled.
(iii) If notice is sent in the form of a non-editable attachment to e-mail, such attachment shall be in the Portable Document Format or in a non-editable format together with a 'link or instructions' for recipient for downloading relevant version of the software.
(iv) When notice or notifications of availability of notice are sent by e-mail, the company should ensure that it uses a system which produces confirmation of the total number of recipients e-mailed and a record of each recipient to whom the notice has been sent and copy of such record and any notices of any failed transmissions and subsequent re-sending shall be retained by or on behalf of the company as ''proof of sending''.
(v) The company's obligation shall be satisfied when it transmits the e-mail and the company shall not be held responsible for a failure in transmission beyond its control:
fails to provide or update relevant e-mail entitled to receive notice a member(vi) If address to the company, or to the depository participant as the case may be, the company shall not be in default for not delivering notice via e-mail.
(vii) The company may send e-mail through in-house facility or its registrar and transfer agent or authorize any third party agency providing bulk e-mail facility.
(viii) The notice made available on the electronic link or Uniform Resource Locator has to be readable, and the recipient should be able to obtain and retain copies and the company shall give the complete Uniform Resource Locator or address of the website and full details of how to access the document or information.
(ix) The notice of the general meeting of the company shall be simultaneously placed on the website of the company if any and on the website as may be notified by the Central Government.
Explanation.- For the purpose of this rule, it is hereby declared that the extra ordinary general meeting shall be held at a place within India.
What is in writing means is defined under Section 20 of the Companies Act , 2013.
Section 20 of the Companies Act , 2013 prescribes that a document may be served on a member by way of post or by registered post or by speed post or by courier or by delivering at his office or address, or by such electronic or other mode as may be prescribed.
Section 20 of the Companies Act, 2013 further provides that a member may request for delivery of any document through a particular mode.
Section 20 of the Companies Act , 2013 is reproduced below for quick reference :
20. (1) A document may be served on a company or an officer thereof by sending it to the company or the officer at the registered office of the company by registered post or by speed post or by courier service or by leaving it at its registered office or by means of such electronic or other mode as may be prescribed:
Provided that where securities are held with a depository, the records of the beneficial ownership may be served by such depository on the company by means of electronic or other mode.
(2) Save as provided in this Act or the rules made thereunder for filing of documents with the Registrar in electronic mode, a document may be served on Registrar or any member by sending it to him by post or by registered post or by speed post or by courier or by delivering at his office or address, or by such electronic or other mode as may be prescribed:
Provided that a member may request for delivery of any document through a particular mode, for which he shall pay such fees as may be determined by the company in its annual general meeting.
Explanation. For the purposes of this section, the term ''courier'' means a person or agency which delivers the document and provides proof of its delivery.
Rule 35 of the Companies (Incorporation) Rules, 2014 prescribes that notice to a member may be served by electronic transmission by serving on electronic mail address provided by member to the company .
Rule 35 the Companies (Incorporation) Rules, 2014is reproduced below for quick reference:
35. Service of documents.-
(1) A document may be served on a company or an officer thereof through electronic transmission.
(2) For the purposes of sub-rule (1), the term, 'electronic transmission' means a communication-
(a) delivered by -
(i) facsimile telecommunication or electronic mail when directed to the facsimile number or electronic mail address, respectively, which the company or the officer has provided from time to time for sending communications to the company or the officer respectively;
(ii) posting of an electronic message board or network that the company or the officer has designated for such communications, and
which transmission shall be validly delivered upon the posting; or
(iii) other means of electronic communication, in respect of which the company or the officer has put in place reasonable systems to verify that the sender is the person purporting to send the transmission; and
(b) that creates a record that is capable of retention, retrieval and review, and which may thereafter be rendered into clearly legible tangible form.
(3) A document may be served on the Registrar or any member through electronic transmission.
(4) For the purposes of sub-rule (3), the term, 'electronic transmission' means a communication -
(a) delivered by -
(i) facsimile telecommunication or electronic mail when directed to the facsimile number or electronic mail address, respectively, which the Registrar or the member has provided from time to time for sending communications to the Registrar or the member respectively;
(ii) posting of an electronic message board or network that the Registrar or the member has designated for those communications, and which transmission shall be validly delivered upon the posting; or
(iii) other means of electronic communication, in respect of which the Registrar or the member has put in place reasonable systems to verify that the sender is the person purporting to send the transmission, and
(b) that creates a record that is capable of retention, retrieval and review, and which may thereafter be rendered into clearly legible tangible form.
(5) For the purposes of sub-section (1) and (2) of section 20, ''courier'' means a document sent through a courier which provides proof of delivery.
(6) In case of delivery by post, such service shall be deemed to have been effected- (i) in the case of a notice of a meeting, at the expiration of forty eight hours after the letter containing the same is posted; and (ii) in any other case, at the time at which the letter would be delivered in the ordinary course of post.
Moreover Companies Act,2013 prescribes for certain companies to provide for electronic voting and in such cases companies have to comply certain specific conditions including sending of notice to enable the members to exercise their voting through e-voting .
Section 108 of the Companies Act, 2013 prescribes that central government may prescribe the companies, in which a member may exercise his right to vote by electronic means.
Section 108 of the Companies Act , 2013 is reproduced below for quick reference :
108. The Central Government may prescribe the class or classes of companies and manner in which a member may exercise his right to vote by the electronic means.
As per Rule 20of the Companies (Management and Administration) Rules, 2014 provides that every listed company shall provide to it members facility to exercise their right to vote on resolutions proposed to be considered at general meetings by electronic means.
Rule 20 further provides that a company which provides the facility to its members to exercise votingby electronic means shall send notice to its members by registered post or speed post or through electronic means that is registerede-mail ID or by courier
Service and notice of the meeting shall also be placed on the website of the company and the agency . This rule is also requires that public notice by of advertisement shall also be given in newspapers specifying the details of voting and date of meeting and business to be transacted thereat etc.
Rule 20 of the Companies (Management and Administration) Rules, 2014 the is reproduced below for quick reference :
20. Voting though electronic means.-
(1) The provisions of this rule shall apply in respect of the general meetings for which notices are issued on or after the date of commencement of this rule.
(2)Every company which has listed its equity shares on a recognized stock exchange and every company having not less than one thousand members shall provide to its members facility to exercise their right to vote on resolutions proposed to be considered at a General meeting by electronic means:
Provided that aNidhi, or an enterprise or institutional investor referred to in Chapter XB or Chapter XC of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements)Regulations, 2009 is not required to provide facility to vote by electronic means:
Explanation: For the purpose of this sub-rule 'Nidhi' means a company which has been incorporated as a Nidhi with the object of cultivating the habit of thrift and saving amongst its members, receiving deposits from and lending to, its members only, for their mutual benefit, and which complies with such rules as are prescribed by the Central Government for regulation or such class of companies.
(3) A member may exercise his through voting by electronic means on resolutions referred to in sub-rule (2) and the company shall pass such resolutions in accordance with the provisions of this rule.
(4) A company which provides the facility to its members to exercise voting by electronic means shall comply with the following procedure, namely:-
(i) the notice of the meeting shall be sent to all the members, directors and auditors of the company either -
(a) by registered post or speed post ;or
(b) through electronic means, namely, registered e-mail ID of the recipient; or
(c) by courier service;
(ii) the notice shall also be placed on the website, if any, of the company and of the agency forthwith after it is sent to the members;
(iii) the notice of the meeting shall clearly state -
(A) that the company is providing facility for voting by electronic means and the business may be transacted through such voting;
(B) that the facility for voting, either through electronic voting system or ballot or polling paper shall also be made available at the meeting and members attending the meeting who have not already cast their vote by remote e-voting shall be able to exercise their right at the meeting;
(C) that the members who have cast their vote by remote e-voting prior to the meeting may also attend the meeting but shall not be entitled to cast their vote again;
(iv) the notice shall -
(A) indicate the process and manner for voting by electronic means ;
(B) indicate the time schedule including the time period during which the votes may be cast by remote e-voting;
(C) provide the details about the login ID;
(D) specify the process and manner for generating or receiving the password and for casting of vote in a secure manner.
(v) the company shall cause a public notice by way of an advertisement to be published, immediately on completion of dispatch of notices for the meeting under clause (i) of sub-rule (4) but at least twenty-one days before the date of general 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 having a wide circulation in that district, and at least once in English language in an English newspaper having country-wide circulation, and specifying in the said advertisement, inter alia, the following matters, namely:-
(a) statement that the business may be transacted through voting by electronic means ;
(b) the date and time of commencement of remote e-voting;
(c) the date and time of end of remote e-voting;
(d) cut-off date;
(e) the manner in which persons who have acquired shares and become members of the company after the dispatch of notice may obtain the login ID and password;
(f) the statement that -
(A) remote e-voting shall not be allowed beyond the said date and time;
(B) the manner in which the company shall provide for voting by members present at the meeting; and
(C) a member may participate in the general meeting even after exercising his right to vote through remote e-voting but shall not be allowed to vote again in the meeting; and
(D) a person whose name is recorded in the register of members or in the register of beneficial owners maintained by the depositories as on the cut-off date only shall be entitled to avail the facility of remote e-voting as well as voting in the general meeting;
(g) website address of the company, if any, and of the agency where notice of the meeting is displayed; and
(h) name, designation, address, email id and phone number of the person responsible to address the grievances connected with facility for voting by electronic means:
Provided that the public notice shall be placed on the website of the company, if any, and of the agency;
(vi) the facility for remote e-voting shall remain open for not less than three days and shall close at 5.00 p.m. on the date preceding the date of the general meeting;
(vii) during the period when facility for remote e-voting is provided, the members of the company, holding shares either in physical form or in de-materialized form, as on the cut-off date, may opt for remote e-voting:
Provided that once the vote on a resolution is cast by the member, he shall not be allowed to change it subsequently or cast the vote again:
Provided further that a member may participate in the general meeting even after exercising his right to vote through remote e-voting but shall not be allowed to vote again;
(viii) at the end of the remote e-voting period, the facility shall forthwith be blocked:
Provided that if a company opts to provide the same electronic voting system as used during remote e-voting during the general meeting, the said facility shall be in operation till all the resolutions are considered and voted upon in the meeting and may be used for voting only by the members attending the meeting and who have not exercised their right to vote through remote e-voting.
(ix) the Board of Directors shall appoint one or more scrutinizer, who may be Chartered Accountant in practice, Cost Accountant in practice, or Company Secretary in practice or an Advocate, or any other person who is not in employment of the company and is a person of repute who, in the opinion of the Board can scrutinize the voting and remote e-voting process in a fair and transparent manner:
Provided that the scrutinizer so appointed may take assistance of a person who is not in employment of the company and who is well-versed with the electronic voting system;
(x) the scrutinizer shall be willing to be appointed and be available for the purpose of ascertaining the requisite majority;
(xi) the Chairman shall, at the general meeting, at the end of discussion on the resolutions on which voting is to be held, allow voting, as provided in clauses(a) to (h) of sub-rule (1) of rule 21, as applicable, with the assistance of scrutinizer, by use of ballot or polling paper or by using an electronic voting system for all those members who are present at the general meeting but have not cast their votes by availing the remote e-voting facility.
(xii) the scrutinizer shall, immediately after the conclusion of voting at the general meeting, first count the votes cast at the meeting, thereafter unblock the votes cast through remote e-voting in the presence of at least two witnesses not in the employment of the company and make, not later than three days of conclusion of the meeting, a consolidated scrutinizer's report of the total votes cast in favour or against, if any, to the Chairman or a person authorized by him in writing who shall countersign the same:
Provided that the Chairman or a person authorized by him in writing shall declare the result of the voting forthwith;
Explanation.- It is hereby clarified that the manner in which members have cast their votes, that is, affirming or negating the resolution, shall remain secret and not available to the Chairman, Scrutinizer or any other person till the votes are cast in the meeting.
(xiii) For the purpose of ensuring that members who have cast their votes through remote e-voting do not vote again at the general meeting, the scrutinizer shall have access, after the closure of period for remote e-voting and before the start of general meeting, to details relating to members, such as their names, folios, number of shares held and such other information that the scrutinizer may require, who have cast votes through remote e-voting but not the manner in which they have cast their votes:
(xiv) the scrutinizer shall maintain a register either manually or electronically to record the assent or dissent received, mentioning the particulars of name, address, folio number or client ID of the members, number of shares held by them, nominal value of such shares and whether the shares have differential voting rights;
(xv) the register and all other papers relating to voting by electronic means shall remain in the safe custody of the scrutinizer until the Chairman considers, approves and signs the minutes and thereafter, the scrutinizer shall hand over the register and other related papers to the company.
(xvi) the results declared along with the report of the scrutinizer shall be placed on the website of the company, if any, and on the website of the agency immediately after the result is declared by the Chairman :
Provided that in case of companies whose equity shares are listed on recognized stock exchange, the company shall, simultaneously, forward the results to the concerned stock exchange or exchanges where its equity shares are listed and such stock exchange or exchanges shall place the results on its or their website.
(xvii) subject to receipt of requisite number of votes, the resolution shall be deemed to be passed on the date of the relevant general meeting.
Explanation.- For the purposes of this clause, the requisite number of votes shall be the votes required to pass the resolution as the 'ordinary resolution' or the 'special resolution', as the case may be, under section 114 of the Act.
(xviii) a resolution proposed to be considered through voting by electronic means shall not be withdrawn.
From the reading of all the relevant sections and rules regarding sending of notice of general meetings by the listed company to its members , it is come out that in case the company elects to send the notice by way of electronic mode over sending it in writing , then it is fully compliance with the act and rules in case it takes the following steps in compliance to sending of notice to members:
- Complies all the conditions of Rule 18 of the Companies (Management and Administration) Rules, 2014 with respect to sending of notices by electronic mode that is requests members to register email with the company and sends the noticed to all the members who have supplied the e-mail ID to the company and resends the mails in case of failure of transmission .
- Publishes the notice and all documents send along with notice on the website of the company and agency through with company provides facility of e-voting to members
- Publishes notice of meeting in newspapers and complies other conditions of Rule 20 with respect to e-voting
- Sends the notice to members in a particular requested manner as per provisions of Section 20 of Companies Act, 2013
Then the company will not be considered in default for not delivering the notices to the members through e-mail who have not supplied their email ID to the company or depository participant.
Thus it is come out that in case a company elects to send the notice by electronic mode to its members, then in case the company complies with the Rule 18 of the Companies (Management and Administration) Rules, 2014 so far it relates to the sending of notices by electronic mode and Rule 20 of the Companies (Management and Administration) Rules, 2014 so far it relates to e-voting ,and sending of notice in a particular requested mode to member as per Section 20 of the Companies Act, 2013 ,then the company is not required to send the notices to members who have not supplied email addresses to the company or depository participant, by other means that is in writing ; through registered post or speed post or courier and not sending of notice to the those members who have not supplied e-mail ID shall not be considered default of delivery of notice through e-mail to those members.
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