Provisions for postal ballots cannot replace actual physical meetings

Bombay High Court: The question before the Court was whether in view of Section 110 of the Companies Act, 2013 and SEBI Circular dated May 21, 2013, a resolution for approval of a Scheme of Amalgamation can be passed by a majority of the equity shareholders casting their votes by postal ballot, which includes voting by electronic means, in complete substitution of an actual meeting. A bench comprising of Gautam S. Patel, J. considered various aspects of the purpose and conduct of shareholders’ meetings, issues of corporate law and governance contained in the 2013 Act as well as various SEBI circulars to arrive at the conclusion that the mechanism of postal ballot, which includes electronic voting, ought to be offered as an additional facility for voting by shareholders and it cannot do away with the need for conducting a meeting. The Court was also confronted with procedural issues relating to the notification of various provisions of the 2013 Act as well as the Rules thereunder. It observed that the website of the Ministry of Corporate Affairs had a link to a single scanned PDF file entitled “Companies 2013 – Statement of Notification of Rules”. Some 21 rules were listed which were all said to be effective from 1st April 2014. However, several of these were not yet gazetted. The Court observed that they do not see how any such rules can be made effective on this basis where a ministry simply puts up some scanned document under the signature of one of its officers but sans any publication in the official gazette.  The Court observed that publication was not an idle formality and had a well-established legal purpose and such purpose cannot be achieved in this ad-hoc manner. Therefore, the Court held that till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force. In re Godrej Industries Limited, Company Summons for Direction 256 of 2014, decided on May 8, 2014

To read the full judgment, refer to SCCOnLine

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