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jeets (CS )     21 July 2010

Special or ordinary resolution

Hello All,

How to determine whether a particular motion needs to be passed by special or ordinary resolution.

For eg:- While increasing the authorised share-capital of a company , the MOA needs to be altered by Special resolution, Can anyone guide me how to determine it.

Thanks

Best Regards

Jeet



 11 Replies

vivek

vivek (CS)     21 July 2010

If Section specifically provides any kind then it will be pased by that manner either Unanimous/SR/OR. If section does not provide then check for AOA. If Section provid for OR even though the AOA may provide for R thn it will be required to be passed as SR.

 

As per Act following list may be used (Check once for the Accuracy) :-

 

MATTERS WHICH HAVE TO BE PASSED BY COMPANY IN GENERAL MEETING BY ORDINARY RESOLUTION

 

1

22

Ractification of name of company which resembles the

2

61

name of another existing company

3

79

Variation of contracts stated in the prospectus

4

94(2)

Issue if Share at discount

5

149(2B)

Alteration of Share Capital

6

165

Commencement of new business where special resolution could not be passed

7

173,205

Approval of Statutory report

8

210

Declaration of Dividend

9

214

Adoption of Annual Account and Director's report

10

224(5)

Authorising representative of Holding company to inspect the books of subsidiary Company

11

224(1)

Appointment of First Auditors of the Company in default of action by the Board

12

224(2)

Appointment of retiring Auditors

13

224(6)

Appointment of Auditors other than retiring Auditors or a resolution that retiring Auditor shall not be reappointed

14

228(3)(a)

Filling of Casual vacancy caused by resignation

15

255

Audit of accounts of branch office other than by Company's Auditors

16

256

Appointment of First Director in default of provisions in the Articles

17

257

Appointment of retiring Directors.

18

260

Appointment of director who is not retiring director proposed by notice from member

19

269

Appointment of Director at the AGM who was appointed as additional Director by the Board

20

284(1)

Appointment of Managing/whole time Director

21

284(2)

Removal of Director by Special notice

22

293(1)(a) to(e)

Appointment of Director in place of one removed.

23

294(2)

Various purposes has been discussed earlier

24

309(1)

Appointment of Sole Selling Agent made by the Board

25

313(1)

Remuneration to Director for technical services

26

484(1)(a)

Appointment of Alternate Director in case there is no provisions in the Articles

27

490(1)

Winding up voluntarily

28

492

Appointment of liquidators on voluntary winding up

29

496

Filling up vacancy in the office of liquidator

30

497

Duty of liquidator to call the general meeting at the end of each year

31

 500/502

Final meeting and dissolution in voluntary winding up

32

500/503

Nomination of liquidator

33

508

Appointment of committee of inspection

34

509

Liquidator to call general meeting every year in thecreditors winding up

35

 

General meeting for desolution---------------

MATTERS WHICH HAVE TO BE PASSED BY COMPANY IN GENERAL MEETING BY SPECIAL RESOLUTION

Sl.No

Section No

Purpose of Resolution

1

17

Alteration of object clause of MOA for dong new business.

2

17

Change of registered office from one state to another

3

21

Change of name of the company other than deletion or addition of the word "private" with the approval of Central  Govt

4

25(3)

Change in the name by deletion of "Limited" or "Private Limited" with the approval of Central Government

5

31

Alteration of Articles of the company

6

77A

Authorising company to buy-back its securities

7

79A

Issue of Sweat equity shares

8

81(1-A)

Issue of Shares to persons other than existing members

9

81(3)

Issue of debentures and raising of loans containing a terms for conversion into equity shares

10

99

Making any portion of share capital to be not called up except in winding up.

11

100

Reduction of Share capital

12

149(2A)

Commencement of new business.

13

163

Keeping register of members/debenture holders copies of annual return at the place other than registered office

14

208

Payment of interest on paid-up capital raised for expenses for construction of any work which will not be profitable for a lengthy period

15

224A

Appointment of auditor in a company in which not less tan 25% of shares are held by specified institution

16

237

Request to Central Government to appoint inspectors to inspect the company

17

259

Increase of number of Directors from that fixed in the Articles.

18

294AA

Appointment of Sole selling agent as well as Sole purchasing Agent by a company having a paid up capital of Rs.50lac and more

19

309

Payment of commission to Director

20

310

Payment of Increased fees to Directors

21

314

Appointment of Directors and there relatives to the place of profit in certain circumstances

22

323

Making liability of any Director or Manager unlimited.

23

372A(1)

Giving loans to any other body corporate, making investment or providing guarantee in excess if limit specified

24

391(2)

Approval of compromise or arrangement or amalgamation by the Direction of the court.

25

433(a)

Winding up of a company by court.

26

484(1)(b)

Voluntary winding up

27

494

Power liquidator to accept share etc as consideration

28

512

Powers of liquidator in members voluntary winding up by special resolution in general meeting.

29

546

In winding up special resolution to give powers to liquidators.

 

 

Regards, 

 

1 Like
jeets

jeets (CS )     21 July 2010

Hi Vivek,

Thankyou so much for such a detailed explanation,

If you don't mind I have one small clarification that needs to be made here. 

Is there any difference between Unanimous/SR/OR

Best Regards

Jeets

Kanika Gupta

Kanika Gupta (C.S Trainee)     21 July 2010

For difference between OR and SR refer Section 189 of the companies act,1956

jeets

jeets (CS )     21 July 2010

Thanks Kanika,

Is there any difference between a resolution unanimously passed and one that is is not: and also is there any legal implications attached to it.

Also

In situations where the AOA prescribes ordinary resolution and Law states special resolution, which one would prevail:- Law or AOA:- I guess it should be Law.

Can anyone advice me

Thanks

Kanika Gupta

Kanika Gupta (C.S Trainee)     21 July 2010

unanimously means resolution passed by all the members present in the meeting and voting.

Special resolution means 75% of the members present in the meeting and voting.

Ordinary resolution means simple majority in favour of the resolution.

 

When act requires SR and AOA prescribes OR then act prevails

When act requires OR and AOA prescribes SR then SR needs to be passed as in this case AOA is  not overriding law.

 

Kalpesh Chauhan,

Kalpesh Chauhan, (Tax Assistant (Accounting Technician CA FINAL CS PROF. PROG. B.Com))     21 July 2010

 Thanks Vivek


vivek

vivek (CS)     21 July 2010

Agree with Kanika,

 

1. There are few section where it specifically provide for Unanimous resolution and it is in case of Board Meeting, means all the directors present in meeting must vote in favour of the resolution {like refer Section 372A(2)}.

 

2. There is a doctrine of "Ultra vires" if Act provides SR then your Article can't provide OR. Their Act will prevail but if Act provide OR then Your Article may provid for SR and Article will prevail.

 

In simple words Article may be stringent then act but article shall not be liberal one then Act.

 

Regards,

Yogesh Bhatt

Yogesh Bhatt (Company Secretary)     21 July 2010

Thanks to vivek

jeets

jeets (CS )     21 July 2010

Thanks Vivek for such a detailed explanation:- It was really helpful

Also Thankyou Ms Kanika for your inputs and assistance

I really appreciate it

Best Regards

Jeet


(Guest)
Originally posted by : vivek

If Section specifically provides any kind then it will be pased by that manner either Unanimous/SR/OR. If section does not provide then check for AOA. If Section provid for OR even though the AOA may provide for R thn it will be required to be passed as SR.

 

As per Act following list may be used (Check once for the Accuracy) :-

 

MATTERS WHICH HAVE TO BE PASSED BY COMPANY IN GENERAL MEETING BY ORDINARY RESOLUTION

 





1



22



Ractification of name of company which resembles the





2



61



name of another existing company





3



79



Variation of contracts stated in the prospectus





4



94(2)



Issue if Share at discount





5



149(2B)



Alteration of Share Capital





6



165



Commencement of new business where special resolution could not be passed





7



173,205



Approval of Statutory report





8



210



Declaration of Dividend





9



214



Adoption of Annual Account and Director's report





10



224(5)



Authorising representative of Holding company to inspect the books of subsidiary Company





11



224(1)



Appointment of First Auditors of the Company in default of action by the Board





12



224(2)



Appointment of retiring Auditors





13



224(6)



Appointment of Auditors other than retiring Auditors or a resolution that retiring Auditor shall not be reappointed





14



228(3)(a)



Filling of Casual vacancy caused by resignation





15



255



Audit of accounts of branch office other than by Company's Auditors





16



256



Appointment of First Director in default of provisions in the Articles





17



257



Appointment of retiring Directors.





18



260



Appointment of director who is not retiring director proposed by notice from member





19



269



Appointment of Director at the AGM who was appointed as additional Director by the Board





20



284(1)



Appointment of Managing/whole time Director





21



284(2)



Removal of Director by Special notice





22



293(1)(a) to(e)



Appointment of Director in place of one removed.





23



294(2)



Various purposes has been discussed earlier





24



309(1)



Appointment of Sole Selling Agent made by the Board





25



313(1)



Remuneration to Director for technical services





26



484(1)(a)



Appointment of Alternate Director in case there is no provisions in the Articles





27



490(1)



Winding up voluntarily





28



492



Appointment of liquidators on voluntary winding up





29



496



Filling up vacancy in the office of liquidator





30



497



Duty of liquidator to call the general meeting at the end of each year





31



 500/502



Final meeting and dissolution in voluntary winding up





32



500/503



Nomination of liquidator





33



508



Appointment of committee of inspection





34



509



Liquidator to call general meeting every year in thecreditors winding up





35



 



General meeting for desolution---------------





MATTERS WHICH HAVE TO BE PASSED BY COMPANY IN GENERAL MEETING BY SPECIAL RESOLUTION






Sl.No



Section No



Purpose of Resolution





1



17



Alteration of object clause of MOA for dong new business.





2



17



Change of registered office from one state to another





3



21



Change of name of the company other than deletion or addition of the word "private" with the approval of Central  Govt





4



25(3)



Change in the name by deletion of "Limited" or "Private Limited" with the approval of Central Government





5



31



Alteration of Articles of the company





6



77A



Authorising company to buy-back its securities





7



79A



Issue of Sweat equity shares





8



81(1-A)



Issue of Shares to persons other than existing members





9



81(3)



Issue of debentures and raising of loans containing a terms for conversion into equity shares





10



99



Making any portion of share capital to be not called up except in winding up.





11



100



Reduction of Share capital





12



149(2A)



Commencement of new business.





13



163



Keeping register of members/debenture holders copies of annual return at the place other than registered office





14



208



Payment of interest on paid-up capital raised for expenses for construction of any work which will not be profitable for a lengthy period





15



224A



Appointment of auditor in a company in which not less tan 25% of shares are held by specified institution





16



237



Request to Central Government to appoint inspectors to inspect the company





17



259



Increase of number of Directors from that fixed in the Articles.





18



294AA



Appointment of Sole selling agent as well as Sole purchasing Agent by a company having a paid up capital of Rs.50lac and more





19



309



Payment of commission to Director





20



310



Payment of Increased fees to Directors





21



314



Appointment of Directors and there relatives to the place of profit in certain circumstances





22



323



Making liability of any Director or Manager unlimited.





23



372A(1)



Giving loans to any other body corporate, making investment or providing guarantee in excess if limit specified





24



391(2)



Approval of compromise or arrangement or amalgamation by the Direction of the court.





25



433(a)



Winding up of a company by court.





26



484(1)(b)



Voluntary winding up





27



494



Power liquidator to accept share etc as consideration





28



512



Powers of liquidator in members voluntary winding up by special resolution in general meeting.





29



546



In winding up special resolution to give powers to liquidators.






 

 

Regards, 

 
Amit Gupta

Amit Gupta (Loosening Myself)     22 July 2010

Originally posted by : Kanika Gupta

unanimously means resolution passed by all the members present in the meeting and voting.

Special resolution means 75% of the members present in the meeting and voting.

Ordinary resolution means simple majority in favour of the resolution.

 

When act requires SR and AOA prescribes OR then act prevails

When act requires OR and AOA prescribes SR then SR needs to be passed as in this case AOA is  not overriding law.

 

 

 

AGREE..


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