Section 167 and 186, dealt with in this part apply to both public limited and private limited companies. The Section 167 of the act prescribes under section 166, the central government may notwithstanding anything contained in the act or in the articles of the company.
Company law board will exercise the power for time being
Pursuant to companies (amendment) act 2002, the power under section 167 was entrusted back to the central government as it was before the amendment as per companies amendment act 1988. But due to certain reasons the central government has not started exercising the above power and some others vested in them by the said amendment act 2002. Till the company law board exists, the power under section 167 and under some other sections are exercised by the CLB.
Time when company makes default in holding annual general meeting
A company is deemed to commit a default in holding an annual general meeting when it does not hold the meeting (not the first annual general meeting after registration) within 15 months after the date of the last AGM and the extension, if any, upto three months granted by the ROC pursuant to the second proviso. Accordingly, if the registrar grants extension of three months, the company shall hold the AGM within 18 months of the immediately previous annual general meeting. If not so held the period of default will start after the expiry of the said 18 months in the circumstances referred to above.
Where extension is refused by the registrar
Where the ROC for any reason refused to grant extension of time for holding the AGM and where it is not possible for the company to hold the AGM within time as per section 166(1). It is possible for the company to move the civil court against the refusal of the registrar.
Company cannot petition
Section 167 empowers only a member to move the CLB and not the company. The private limited company, its articles may present that the company may be ordered in their meetings.
CLB to give such supportive or important directions for holding the meeting
Where the CLB term or direct the calling of a meeting under section 167, it is expected that the CLB’s power would include the appointment of a chairman for the conduct of the meeting. Even one member personally present or by proxy can constitute a valid meeting in terms of the explanation under section 167.
Section B – Power of the tribunal to order holding a general meeting under – section 186 of the act
While section 167 of the act affords a right to a member to move the central government (or for the time being the CLB) to name or direct the calling of an annual general meeting if default is made to hold a general meeting other than an AGM, the Tribunal (or the Company Law Board for the time being as elsewhere explained) may order a general meeting to be called in their tribunal.
Who can apply to the CLB?
While under section 167 only a valid member of the company can make the application, section 186 empowers any of the following to move the CLB namely:
- A director of the company or
- A member is authorize to vote in their meeting.
The section also authorizes the CLB on its own to order company meetings.
Pre-condition for taking recourse to section 186
It is provided in section 186 that recourse to this section will be available only if it is impossible to call company general meetings or annual meetings in conformity with the provisions of the act. In a company where there were two directors who could not see eye to eye on any matter, the CLB directed the calling of an extra-ordinary general meeting. The registration and other documents may be specified under this section.
Where extra-ordinary general meeting possible, recourse to section 186 defined
It was observed that two conditions must be satisfied for an application under section 186, namely that a director or a company member is authorized to vote at the meeting alone can file the application. Further it should be impossible to call a general meeting other than an AGM. It was found that the applicant holding the requisite shareholding had a right to call an extraordinary general meeting under section 169(6). It was held that it was not impossible to convene an extraordinary general meeting under section 169 (6).
Section 186 gives scope for direction by the tribunal
The tribunal (for the time being the company Law Board, exercises great discretion under this section as it can provide such additional or important directions as it thinks effective containing to changing directions or providing in association to the calling and holding the meeting, the effect of the provisions of this act and of the company’s articles. The Registrar of Companies (ROC) may placed in the location of Coimbatore and Chennai.
Armed with such extra-ordinary direction, it was found that the CLB judicially solved the stalemate in a private limited company which had two directors one of whom died and it was not possible to have a board meeting, the company’s sole director made an application to the CLB which gave appropriate directions to transmit the shares of the deceased to his legal heir, thus paring the way for two shareholders who may follow the procedure in calling a general meeting.