Dipanjan (N/A) (89 Points)
02 June 2010Can any one please explain the intricate provision Section 297(3) of the Companies Act.
Can a company (public or private) having capital more than Rs. 1 crores enter any emergency contract for value more than Rs.5000/- even without the Central Government Approval.
CA VINAY BANSAL
(In job with KPMG)
(289 Points)
Replied 02 June 2010
Not specifically mentioned in the Act, but the same should be approved by the CG. But the transaction need be required to seek permission in case the market value is same as the transation value.(evident from the sub section 2)
297. Board's sanction to be required for certain contracts in which particular directors are interested
(1) Except with the consent of the Board of directors of a company, a director of the company or his relative, a firm in which such a director or relative is a partner, any other partner in such a firm, or a private company of which the director is a member or director, shall not enter into any contract with the company-
(a) for the sale, purchase or supply of any goods, material or services; or2[(2) Nothing contained in clause (a) of sub-section (1) shall affect-
(b) after the commencement of this Act, for underwriting the subscripttion of any shares in, or debentures of, the company:
1[Provided that in the case of a company having a paid-up share capital of not less than rupees one crore, no such contract shall be entered into except with the previous approval of the Central Government.]
(a) the purchase of goods and materials from the company, or the sale of goods and materials to the company, by any director, relative, firm, partner or private company as aforesaid for cash at prevailing market prices; or(3) Notwithstanding anything contained in sub-sections (1) and (2) a director, relative, firm, partner or private company as aforesaid may, in circumstances of urgent necessity, enter, without obtaining the consent of the Board, into any contract with the company for the sale, purchase or supply of any goods, materials or services even if the value of such goods or cost of such services exceeds five thousand rupees in the aggregate in any year comprised in the period of the contract; but in such a case, the consent of the Board shall be obtained at a meeting within three months of the date on which the contract was entered into.
(b) any contract or contracts between the company on one side and any such director, relative, firm, partner or private company on the other for sale, purchase or -supply of any goods, materials and services in which either the company or the director, relative, firm, partner or private company, as the case may be, regularly trades or does business.
Provided that such contract or contracts do not relate to goods and materials the value of which, or services the cost of which, exceeds five thousand rupees in the aggregate in any year comprised in the period of the contract or contracts; or
(c) in the case of a banking or insurance company any transaction in the ordinary course of business of such company with any director, relative, firm, partner or private company as aforesaid.
(4) Every consent of the Board required under this section shall be accorded by a resolution passed at a meeting of the Board and not otherwise; and the consent of the Board required under sub-section (1) shall not be deemed to have been given within the meaning of that sub-section unless the consent is accorded before the contract is entered into or within three months of the date on which it was entered into.
(5) If consent is not accorded to any contract under this section, anything done in pursuance of the contract shall be voidable at the option of the Board.
(6) Nothing in this section shall apply to any case where the consent has been accorded to the contract before the commencement of the Companies (Amendment) Act, 1960.
1. Inserted by Act 41 of 1974, sec. 28 (w.e.f. 1st. February, 1975).
2. Subs. by Act 65 of 1960, sec. 104, for sub-sections (2), (3), (4) and (5) (w.e.f. 28-12-1960).
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 02 June 2010
Dear Friend,
As clarified by the department of company affairs provisions of section 297(3) cannot be considered as an exception of Central Govt. approval. CG approval is must where paid up capital of the company is Rs. 1 crore or more.
Where the circumstances are of urgent necessity, even though board’s approval may be taken within 3 months. Prior approval of the Central Govt. is very much required, if the paid up capital of the company is Rs. 1 crore or more. (DCA letter no. 8/11/75-CL-V, dated 29.03.1975).
Best Regards
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