29 September 2017
Is it necessary to file e-form MGT-14 by the small company (Pvt. Ltd.) for the consideration of [Accounts], [Directors Report], [Auditors Report] and [appointment of auditor] as an {Ordinary Resolution} passed in an AGM conducted in year 2017???
29 September 2017
As per our analysis, e-form MGT-14 is related with the two Sections of the Companies Act, 2013. These two Sections are- Section 94(1) and Section 117(1). As per Section 94(1): The registers required to be kept and maintained by a company under section 88 and copies of the annual return filed under section 92 shall be kept at the registered office of the company:
Provided that such registers or copies of return may also be kept at any other place in India in which more than one-tenth of the total number of members entered in the register of members reside, if approved by a special resolution passed at a general meeting of the company and the Registrar has been given a copy of the proposed special resolution in advance:
Provided further that the period for which the registers, returns and records are required to be kept shall be such as may be prescribed. As per Rule 15 associates with the Section 94(1): A copy of the proposed special resolution in advance to be filed with the registrar as required in accordance with first proviso of sub-section (1) of section 94, shall be filed with the Registrar, at least one day before the date of general meeting of the company in Form No.MGT.14.
Conclusion: Since there is no change in the place of Registers and Returns as mentioned in the Section 94(1) and accordingly there is no any Special Resolution has been passed in relation of it in the AGM hence, i think there is no need to file MGT-14 related to Section 94(1) of the Act.
Now, I analyse Section 117. (1) 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 5&7[thirty days] of the passing or making thereof in such manner and with such fees as may be prescribed within the time specified under section 403:
Provided that the copy of every resolution which has the effect of altering the articles and the copy of every agreement referred to in sub-section (3) shall be embodied in or annexed to every copy of the articles issued after passing of the resolution or making of the agreement.
(2) If a company fails to file the resolution or the agreement under sub-section (1) before the expiry of the period specified under section 403 with additional fee, the company shall be punishable with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees and every officer of the company who is in default, including liquidator of the company, if any, shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.
(3) The provisions of this section shall apply to—
(a) special resolutions;
(b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions;
(c) any resolution of the Board of Directors of a company or agreement executed by a company, relating to the appointment, re-appointment or renewal of the appointment, or variation of the terms of appointment, of a managing director;
(d) resolutions or agreements which have been agreed to by any class of members but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by a specified majority or otherwise in some particular manner; and all resolutions or agreements which effectively bind such class of members though not agreed to by all those members;
(e) resolutions passed by a company according consent to the exercise by its Board of directors of any of the powers under clause (a) and clause (c) of sub-section (1) of section 180;
(f) resolutions requiring a company to be wound up voluntarily passed in pursuance of 3["section 59 of the Insolvency and Bankruptcy Code, 2016"]
4&6[(g) resolutions passed in pursuance of sub-section (3) of section 179;1[Omitted]
2[Provided that no person shall be entitled under section 399 to inspect or obtain copies of such resolutions; and] ]
(h) any other resolution or agreement as may be prescribed and placed in the public domain. ------------------------------------------------- 4. In case of private company - clause (g) of Sub-section 3 of Section 117 shall not apply . - Notification dated 5th june, 2015. --------------------------------------------------------- After analyzing Section 117, i found that Clause (a) to (f) is not relevant for this small company, Clause (g) has been exempted, Clause (h) there is no any prescription by the Govt. ------------------------------------------------ According to my analysis of the aforesaid two section relevant to the MGT-14, this small company doesn't come in the ambit of MGT-14. ------------------------------------------ But the question remain open, i.e., Is it necessary to file e-form MGT-14 by the small company (Pvt. Ltd.) for the consideration of [Accounts], [Directors Report], [Auditors Report] and [appointment of auditor] as an {Ordinary Resolution} passed in an AGM conducted in year 2017???
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