Analysis of Circular Clarifying passing of Ordinary & Special Resolution by MCA amid COVID-19 outbreak dated 08th April, 2020

Analysis of Circular Clarifying passing of Ordinary & Special Resolution by MCA amid COVID-19 outbreak dated 08th April, 2020

The Ministry of Corporate Affairs is fully cognizant of the difficulties faced by the companies on account of ongoing nation-wide lockdown and social distancing due to COVID-19. Several representations have been received in the Ministry for providing relaxations in the provisions of Companies Act, 2013 (the Act) or rules made thereunder to allow companies to pass ordinary and special resolutions of urgent nature, in view of the difficulties faced by the stakeholders on account of the threat posed by Covid-19.

MCA earlier had allowed relaxation on all meetings of the Board of Directors vide its notification dated 19.03.2020. In view of the current extraordinary circumstances due to the pandemic caused by COVID-19 prevailing in the country, requiring social distancing, companies are requested to take all decisions of urgent nature requiring the approval of members, other than items of ordinary business or business where any person has a right to be heard, through the mechanism of postal ballot/e-voting in accordance with the provisions of the Act and rules made thereunder, without holding a general meeting, which requires physical presence of members at a common venue.

However, in case holding of an extraordinary general meeting (EGM) by any ‘company is considered unavoidable, the following procedure needs to be adopted for conducting such a meeting on or before 30.06.2020, in addition to any other requirement provided in the Act or the rules made thereunder;

Hope all Stakeholders will get benefit from Analysis of this Circular

Analysis of Circular
Companies which are required to provide the facility of e-voting under the Companies Act, 2013 or any other company which has opted for such facility
Sr. No.	Particulars
A	EGMs, wherever unavoidable, may be held through VC or OAVM and the recorded transcript of the same shall be maintained in safe custody by the company. In case of a public company, the recorded transcript of the meeting, shall as soon as possible, be also made available on the website (if any) of the company.
B.	Convenience of different persons positioned in different time zones shall be ·         Kept in mind before scheduling the meeting.
C.	All care must be taken to ensure that such meeting through VC or OAVM facility allows two way teleconferencing or webex for the ease of participation of the members and the participants are allowed to pose questions concurrently or given time to submit questions in advance on the e-mail address of the company. Such facility must have a capacity to allow at least 1000 members to participate on a first-come-first-served basis. The large shareholders (i.e. shareholders holding 2% or more shareholding), promoters, institutional investors, directors. key managerial personnel. The chairpersons of the Audit Committee. Nomination and Remuneration Committee and Stakeholders Relationship Committee, auditors. etc. may be allowed to attend the meeting without restriction on account of first-come first- served principle.
D	The facility for joining the meeting shall be kept open at least 15 minutes before the time scheduled to start the meeting and shall not be closed till the expiry of 15 minutes after such scheduled time.
E	Before the actual date of the meeting, the facility of remote e-voting shall be provided in accordance with the Act and the rules.
F.	Attendance of members through VC or OAVM shall be counted for the purpose of reckoning the quorum under section 103 of the Act.
G.	Only those members, who are present in the meeting through VC or OAVM facility and have not cast their vote on resolutions through remote @-voting and are otherwise not barred from doing so, shall be allowed to vote through e-voting system or by a show of hands in the meeting.
H	Unless the articles of the company require any specific person to be appointed as a Chairman for the meeting, the Chairman for the meeting shall be appointed in the following manner: a. where there are less than 50 members present at the meeting, the Chairman shall be appointed in accordance with section 104: ·         b. in all other cases, the Chairman shall be appointed by a poll conducted through the e-voting system during the meeting.
I	The Chairman present at the meeting shall ensure that the facility of e-voting system is available for the purpose of conducting a poll during the meeting held through VC or OAVM. Depending on the number of members present in such meeting, the voting shall be conducted in the following manner: a. where there are less than 50 members present at the meeting, the voting may be conducted either through the e-voting system or by a show of hands, unless a demand for poll is made in accordance with section 109 of the Act, in which case, the voting shall be conducted through the e-voting system; b. in all other cases, the voting shall be conducted through e-voting system,
J	A proxy is allowed to be appointed under section 105 of the Act to attend and vote at a general meeting on behalf of a member who is not able to attend personally. Since general meetings under this framework will be held through VC or OAVM, where physical attendance of members in any case has been dispensed with, there is no requirement of appointment of proxies. Accordingly, the facility of appointment of proxies by members will not be available for such meetings. However, in pursuance of section 112 and section 113 of the Act, representatives of the members may be appointed for the purpose of voting through remote e-voting or for participation and voting in the meeting held through VC or OAVM.
K	At least one independent director (where the company is required to appoint one), and the auditor or his authorized representative, who is qualified to be the auditor shall attend such meeting through VC or OAVM.
L	Where institutional investors are members of a company, they must be encouraged to attend and vote in the said meeting through VC or OAVM.
M	·         Notice of the meeting shall comprise clear disclosure with respect to the manner in which meeting shall be conducted, how to access and participate in the meeting, for use by the members. ·         The company shall also provide the helpline numbers through the Registrar & Transfer Agent, Technology Provider or such other person as required for those members who need assistance with using the technology before or during the meeting. ·         A copy of notice of meeting shall be published on the website of the company and all the required intimation mat be made to the stock exchanges in case of listed company.
N	·         Notice for meeting which has been served before the date of circular i.e. 8th April, 2020, may adopt the framework mentioned herein above by complying the following; √ Consent of member shall be obtained in accordance with the Section 101(1) of the Companies Act, 2013; AND  ·         √A fresh notice of shorter duration with due disclosures in consonance with the said circular is issued consequently.
O	·         All resolutions passed in accordance with this mechanism shall be filed with the Registrar of Companies (ROC) within 60 days of the meeting. ·         The same shall clearly mention the provisions of the circular along with other provisions of the Companies Act, 2013 were duly complied with during such meeting.
Companies which are not required to provide the facility of e-voting under the Companies Act, 2013
Sr. No.	Particulars
A	·         EGM where unavoidable, may be held through VC or OAVM and the recorded transcript of the same shall be maintained in safe custody by the company. In case of public company, the recorded transcript of the meeting shall be as soon as possible, be also made available on the website (if any) of the company.
B	·         Such meeting through VC or OAVM shall allow two way teleconferencing or webex for the ease of participation of the members. The participants shall also be allowed to pose questions concurrently or given time to submit questions in advance on the e-mail address of the company. ·          Such facility shall have a capacity to allow at least 500 members OR members equal to the total number of members of the company {whichever is lower} to participate on a first-come-first served basis.
C	·         Restriction on account of first-come-first served basis may not apply to; √ Shareholders holding 2% or more shareholding; √ Promoters; √ Institutional Investors; √ Directors; √ Key Managerial Personnel; √The chairpersons of the Audit Committee, Nomination and Remuneration Committee, Stakeholder Relationship Committee; √ Auditors, etc.
D	·         The facility for joining the meeting shall be kept open at least 15 minutes before the time scheduled to start the meeting and shall not be closed till the expiry of 15 minutes after such scheduled time.
E	·         Attendance of members through VC or OAVM shall be counted for the purpose of reckoning the quorum under Section 103 of the Companies Act, 2013.
F.	Unless the Articles of the company, require any specific person to be appointed as a Chairman for the Meeting, the Chairman for the Meeting shall beappointed in the Following manner: a.     Where there areless than 50 memberspresent at the meeting, the Chairman shall be appointed in accordance with section 104; b.    In all other cases, The Chairman shall be appointed by a poll conducted in a manner provided in succeeding sub-paragraphs.
G.	·         At least one independent director (where the company is required to appoint) and the auditor or his authorized representative who is qualified to be the auditor shall attend such meeting through VC or OAVM. ·          The company shall encourage the institutional investors who are members of the company, to attend and vote in the meeting through VC or OAVM.
H	·         A proxy is allowed to be appointed under section 105 of the Act to attend and vote at a general meeting on behalf of a member who is not able to attend personally. Since general meetings under this framework will be held through VC or OAVM, where physical attendance of members in any case has been dispensed with, there is no requirement of appointment of proxies. Accordingly, the facility of appointment of proxies by members will not be available for such meetings. However, in pursuance of Section 112 and section 113 of the Act, representatives of the members may be appointed for the purpose of voting in the meeting held through VC or OAVM.
I	·         Where Institutional investors are members, of a company they must be encouraged to attend and vote in the said meeting through VC or OACM.
J	·         The company shall provide a designated email address to all members at the time of sending the notice of meeting so that the members can convey their vote, when a poll is required to be taken during the meeting on any resolution, at such designated email address. ·         The confidentiality of the password and other privacy issues associated with the designated email address shall be strictly maintained by the company at all times. ·         Due safeguards with respect to authenticity of email address(es) and other details of the members shall also be taken by the company.
K.	·         During the meeting through VC or OAVM facility, where a poll on any item is required, in such case the members shall cast their vote on the resolutions on by sending emails through their email address(es) which are registered with the company. ·         Email for casting votes shall only be sent to the designated email address circulated by the company in advance.
L	·         Where less than 50 members are present in a meeting, The Chairman may decide to conduct a vote by show of hands, unless a demand for poll is made by any member in accordance with section 109 of the Act. Once such demand is made, the procedure provided in the preceding sub-paragraphs shall be followed.
M	·         The meeting may be adjourned for the purpose of counting votes and be called later to declare the result.
N	·         Notice of the meeting shall comprise clear disclosure with respect to the manner in which meeting shall be conducted, how to access and participate in the meeting, for use by the members. ·         The company shall also provide the helpline numbers through the Registrar & Transfer Agent, Technology Provider or such other person as required for those members who need assistance with using the technology before or during the meeting. ·         A copy of notice of meeting shall be published on the website of the company.
O	In case a notice for meeting has been served prior to the date of this Circular, the framework proposed in this Circular may be adopted for the meeting in case the consent from members has been obtained in accordance with section101(1) of the Act, and a fresh notice of shorter duration with due disclosures in consonance with this Circular is issued consequently.
P	·          All resolutions passed in accordance with this mechanism shall be filed with the Registrar of Companies (ROC) within 60 days of the meeting. ·         The same shall clearly mention the provisions of the circular along with other provisions of the Companies Act, 2013 were duly complied with during such meeting.

This framework allows the companies to hold shareholders’ EGMs through VC/AOVM without compromising on the other requirements of law. As an additional check, all companies using this option are required to maintain a recorded transcript of the entire proceedings in safe custody, and public companies are also required to host this transcription their website for greater transparency.

This is a very good initiative taken by Ministry and will definitely ease the difficulties faced by the companies for passing of ordinary and special resolution of urgent nature.

DISCLAIMER: The article is based on the relevant provisions and as per the information existing at the time of the preparation. In no event I shall be liable for any direct and indirect result from this article. This is only a knowledge sharing initiative.

THE AUTHOR – CS Deepak Seth (Associate Partner at Helpinghands Professionals LLP) and can be reached at contacthhpro@gmail.com or 9910248911.