Mandatory filing of MGT-14 for Board Resolution in case of Private Placement despite of Exemption to Private Companies.
As per Rule 14(8) of Companies (Prospectus of Securities) Rules, 2014, “a company shall issue private placement offer cum application letter only after the relevant special resolution or Board Resolution has been filed in the Registry.
“Provided that Private Companies shall file with the Registry copy of Board resolution or special resolution with respect to approval under clause (c) of sub-section (3) of Section 179.
With the exemption by Notification No. GSR 464(E) dated June 5, 2015 ( regarding non applicability of Section 117(3)(g) of the Companies Act 2013 (“CA 2013”) to Private Companies) Private Companies need not file resolutions passed under Section 179(3) of the CA 2013. But as specific provision provided under proviso to Rule 14(8) of Companies (Prospectus of Securities) Rules, 2014, e-Form MGT-14 for board resolution, even in private company, shall be filed with the Registrar of Companies within 30 days of passing of board resolution and pay fee as per the Companies (Registration Offices and Fees) Rules, 2014.
Private Companies need not file resolutions passed under Section 179(3) of the CA 2013.
Pursuant to Section 117(1) of the CA 2013, “copy of every resolution or any agreement, in respect of matters specified in sub-section (3) of Sec 117 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 thirty days of the passing or making thereof in such manner and with such fees as may be prescribed.
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.”
Rule 24 the Companies (Management and Administration) Rules, 2014: A copy of every resolution or any agreement required to be filed, together with the explanatory statement under section 102, if any, shall be filed with the Registrar in Form No. MGT 14 along with the fee.
Accordingly, every company is required to inform ROC through filing of Form No. MGT 14 about major actions taken by the company u/s 117(3) of the CA 2013 either through passing of any resolutions (at Board meeting or Member’s meeting) or by entering into any agreement.
The list of action taken by the company either through passing of any resolutions (at Board meeting or Member’s meeting) or by entering into any agreement, has been provided
Under Section 117(3) of the CA 2013;
Under Section 179(3) of the CA 2013; and
Rule 8 of the Companies (Meetings of Board and its Powers) Rules, 2014.
With the exemption by Notification No. GSR 464(E) dated June 5, 2015 (regarding non applicability of Section 117(3)(g) of the CA 2013 to Private Companies), Private Companies need not file resolutions passed under Section 179(3) of the CA 2013, i.e. Board’s powers to be exercised at the Board meeting. Due to non-applicability of Section 117(3)(g) of the CA 2013 to Private Companies, the applicability of Rule 8 of Companies (Meetings of Board & its Powers) Rules, 2014 does not arise.
As a result, Private Companies need not file e-form MGT-14 with ROC on 13 various occasions of exercise of powers of Board under the provisions of Section 179(3) and Rule 8 of amended Companies (Meetings of Board & its Powers) Rules, 2014. Please note that the above exemption is not a full exemption. It is only regarding Section 179(3) and Rule 8 of amended Companies (Meetings of Board & its Powers) Rules, 2014. Therefore, any action mentioned under Section 117(3) of the CA 2013 (i.e., 117(3)(a) to (f) of the CA 2013), Private Companies still require to file e-form MGT-14 with ROC.
MGT-14 needs to be filed by a company with the Registrar of Companies (RoC) in accordance with section 94(1) and 117(1) of the Companies Act 2013 and the rules made thereunder.
However, the private companies are exempted from filing Board Resolutions. Private companies are not required to file MGT-14 for matters specified in section 179(3) of the Companies Act 2013 read with rule 8 of the Companies (Meetings of Board and its Powers) Rules 2014. Thus, private companies do not have to file e-form MGT-14 with the RoC on the exercise of powers of the Board under the provisions of Section 179(3) of the Companies Act 2013.
Purpose of Filing
Meetings of the Board of Directors/Shareholders/Creditors are held, and resolutions are passed at the said meetings. The resolutions have to be filed with the ROC by the company or liquidator as the case may be and such resolutions are filed in Form MGT-14.
Resolutions/Agreements to be Filed Under Section 117(3)
Resolutions which have been agreed to be passed as special resolutions by all the members of the company.
Any resolution passed by the BOD with regard to appointment/reappointment/renewal/variation of the terms of appointment of the managing director.
Resolutions that have been agreed to be passed by a specified majority or in a particular manner by any class of members.
Resolutions requiring winding up of the company as specified under section 59 of the Insolvency and Bankruptcy Code 2016.
Resolutions passed under Section 179(3).
List of Resolutions to be Filed in MGT-14
The list of resolutions filed in MGT-14 are listed under 3 categories as follows:
Annexure A – Board Resolutions
Under Annexure A, the following matters dealt with in the board resolutions needs to filed:
Inspection of the books of accounts as well as the other records of the subsidiary.
Authorisation for making political contributions.
Making an investment or giving of loan/guarantee/security by the company.
Related party transaction contract/agreement.
Appointment of a whole-time key managerial personnel of a company.
Appointment of a person as managing director if he is the manager/managing director of another company.
Approval of self prospectus.
Appointing/ re-appointing/renewing of appointment/variation of the terms of appointment, of a managing director.
Calling of the unpaid amount on the shares from the shareholders.
Authorisation of buy-back of securities as provided under Section 68.
Issuing securities (including debentures) in India/outside India.
To borrow money.
Approval of the Board’s report and financial statements.
To diversify the business of the company.
To approve amalgamation, merger or reconstruction.
Taking over a firm or acquiring the controlling stake in another firm.
Annexure B – Special Resolutions
Under Annexure B, the following matters dealt with in the special resolutions needs to filed:
Insertion of a provision of entrenchment in Articles of Association by companies.
Change of a registered office from one city to another in the same state.
Alteration of Memorandum of Association.
Change in the object in case the money raised is unutilised.
Alteration of Articles of Association.
Variation in terms of a contract or objects in the prospectus.
Issue of the depository receipts in any of the foreign countries.
Variation of shareholder rights.
Issue of sweat equity shares.
Issue of employee stock options.
A private offer of securities.
Issue of debentures or loans containing an option for conversion to shares.
Reduction of share capital.
Purchase/subscription of fully paid shares for the benefit of employees.
Buyback of shares.
Keeping registers at any other place in India other than the registered office.
Removal of auditor before the expiry of the term.
Appointment of more than 15 directors.
Reappointment of Independent Director.
Restricting the number of directorships of a director.
Selling, leasing or otherwise disposing of the whole/substantially the whole of the undertaking of the company or in case the company owns more than one undertaking, of the whole or substantially the whole of any of such undertakings.
Investing otherwise in trust securities, the amount of compensation obtained by it as a result of an amalgamation or merger.
Borrowing money, where the money to be borrowed plus the money already borrowed by the company will exceed the aggregate of its paid-up share capital plus free reserves, other than the temporary loans obtained from the company‘s bankers in the ordinary course of business.
Provide time for the repayment of debt due from a director.
Scheme for providing loan to directors.
Loan and investment by a company exceeding 60% of its paid-up share capital, free reserves and securities premium account or 100% of its free reserves and securities premium account, whichever is more.
Appointment of a director, i.e. a managing director/whole-time director/manager above the age of 70 years.
Affairs of the company ought to be investigated.
Application to the registrar for removal of name from the register.
Scheme relating to the amalgamation of sick companies with any other company.
Winding up of a company by the tribunal.
Voluntary winding up of the company.
To provide the liquidator with the powers to accept shares etc. as consideration for the sale of a property.
Approval for the arrangement between the company which is about to be wound up and its creditors to be binding.
Providing sanction to the company liquidator to exercise certain powers.
Disposal of books and paper of the company when the company is completely wound up and is about to be dissolved.
Annexure C – Ordinary Resolutions
Under Annexure C, the following matters dealt with in the ordinary resolutions needs to filed:
Company to change its name after receiving direction from the registrar if it has been found that the name was applied to, by furnishing false information
Company to change its name after receiving direction from the Central Government if the name/trademark is too identical to an existing company name /registered trademark.
Acceptance of deposits from the public.
Representation of Corporations at the meeting of companies.
Representation at any meeting of creditors.
Appointing any other person other than a retiring auditor as a statutory auditor.
Removal of director before the expiry of the period of his office.
Delegation of the powers by the board as specified under Section 179(3) clauses(d) to (f).
Permission to enter into non-cash transactions to a director of the company/holding/subsidiary/associate company.
Appointment of a managing director/whole-time director/manager.
Dissolution after considering the report of the Company Liquidator.
Voluntary winding up of the company as a result of the expiry of the period of its duration or on the occurrence of any event in respect of which the articles provide that the company should be dissolved.
Entering into a contract with a related party in case of companies having prescribed paid-up capital or the amount of the transaction exceeds the prescribed amount.
Penalty Under Section 117
Failure to file the Resolution or the Agreement under sub-section (1) of Section 117 prior to the expiry of the period mentioned under Section 403 with an additional fee, the penalty shall be as below:
|Company||Minimum: Rs 1 lakh |
In case the failure continues after the first one: Rs 500 for each day
Maximum: Rs 25 lakh
|Every officer in default(including the liquidator of the company)||Minimum: Rs 50,000 |
In case the failure continues after the first one: Rs 500 for each day
Maximum: Rs 5 lakh
Time Limit For Filing MGT-14
As per Section 117(1), the company shall file the resolutions and agreements in form MGT-14 within 30 days from the resolution being passed or the agreement being entered into.
Consequences of Failure to File MGT-14 Within 300 Days From Passing of Resolution
In such a case, the Company will not be able to file form MGT-14. Since MGT-14 requires details of SRN of INC-28 and INC-28 can be filed only after receiving an order of condonation. The power of condonation is assigned to the Ministry of Corporate Affairs. Below are the steps to be followed for condonation of delay:
- The company will have to file form CG-1 with MCA for condonation in delay in filing form MGT-14.
- MCA shall levy a penalty in the condonation order, and the company shall be liable for the payment of such penalty.
- After receipt of order and payment of a penalty, the company shall file a copy of the order and penalty receipt in form INC-28 with ROC.
- The company shall then file e-form MGT-14 by mentioning SRN of INC-28.