Professional Documents
Culture Documents
- 3
Made by:
Abhishek Jain
10108
PGDM
CORPORATE LEGAL ENVIRONMENT
Ques1 (a) Define “Negotiable Instrument” and distinguish between ‘Cheque’ and ‘Bill of
Exchange’.
Answer 1 (a)
Negotiable Instruments: Law relating to promissory notes, bills of exchange, cheques and other
negotiable instruments is codified in India under the Negotiable Instruments Act, 1881. It defines
promissory note, bill of exchange, cheque, foreign instrument and negotiable instrument. As per
the provisions of this Act, in India, every person capable of contracting, according to the law to
which he is subject, may bind himself and be bound by making, drawing, accepting, endorsing,
delivering and negotiating of a promissory note, bill of exchange or cheque and every person
capable of binding himself or of being bound, may so bind himself or be bound by a duly
authorized agent acting in his name. The act provides for the liability of an agent, legal
representative, drawer, drawee, maker and acceptor of a bill, endorser, holder in due course,
suretyship, etc. As per the provisions laid down in the said act, a negotiable instrument means a
promissory note, bill of exchange or cheque payable either to order or to bearer and when a
promissory note, bill of exchange or cheque is transferred to any person so as to constitute the
person, the holder thereof the instrument is to be negotiated. Detailed provisions have been made
in the Act concerning presentment, payment, interest, discharge from liability, notice of
dishonour, noting and protest, reasonable time for payment, acceptance and payment for honour
and reference in case of need, compensation, special rules of evidence, providing for certain
presumptions and estoppels, cross cheques, bills in sets, etc.
CHAPTER XVI comprising of Section 134 to 137 is of an International Law and the said 4
sections read as follows:
"134. Law governing liability of maker, acceptor or endorser of foreign instrument.”
In the absence of a contract to the contrary, the liability of the maker of drawer of a foreign
promissory note, bill of exchange or cheque is regulated in all essential matters by the law of the
place where he made the instrument, and the respective liabilities of the acceptor and endorser by
the law of the place where the instrument is made payable.
Ques1 (b) what is crossing of a Cheque? Discuss various modes of crossing of a Cheque.
Answer 1 (b) Crossing” a cheque is a way of making even more certain that the money is paid to
the correct person and not to someone else. By “crossing” the cheque in the ways that follow,
you give the bank extra instructions about how it is to be paid. This is called limiting its
negotiability.
If we draw a line to cross out the words “or bearer”, then we are telling the bank that the money
cannot just be paid out to anyone who happens to present the cheque. It must be paid out to the
person named on the “Pay” line. It is possible to get around this by “endorsing” the cheque. This
means that the person to whom the cheque is made out signs the back thus giving their
permission for it to be presented for payment.
If we cross out “to bearer” and draw two parallel lines across the front of the cheque (usually the
top left corner is sufficient) then we are telling the bank that the money has to be paid into an
account and cannot be cashed (exchanged for cash). This means that the person who eventually
receives the money can be traced because there will be a record of the deposit.
1. General Crossing
2. Special Crossing
General Crossing
Sec 123 of the Negotiable Instruments Act 1881 defines general crossing as follows:
“Where a cheque bears across its face, an addition of the words; ‘and company’ or any
abbreviation thereof. Between two parallel transverse lines or of two parallel transverse lines
simply, either with or without the words ‘not negotiable’, that addition shall be deemed to be a
‘crossing, and the cheque shall be deemed to be crossed generally.”
1. And Company
2. & Co.,
3. Not Negotiable
4. Payee’s A/C
1. The effect of general crossing is that it gives a direction to the paying banker.
2. The direction is that the paying banker should not pay the cheque at the counter.
• He has no right to debit his customers account, since , it will constitute a breach of
his customer’s mandate,
• He will be liable to the drawer for any loss, which he may suffer,
• He will be liable to the true owner of the cheque who may be the third party.
Special Crossing
Sec 124 of the Negotiable Instruments Act of 1881 defines:
“Where a cheque bears across its face, an addition of the name of a banker, with or without the
words ‘Not Negotiable’, that addition shall be deemed a crossing, and the cheque shall be
deemed to be crossed specially, and to be crossed to that banker”
2. A special crossing gives more protection the cheque than a general crossing.
Answer 2:
Cheque Dealing has become vital and important not only for banking purpose but for general
commerce and trade industry and also for the economy of the country. The Negotiable
Instruments (Amendment and Miscellaneous Provisions) Act, 2002 brought out effective legal
provisions to restrain people from issuing cheques without having sufficient funds in their
account.
Negotiable Instrument: - Negotiable” means transferable and “Instrument” means a written
document by which a right is created in favour of some person. A negotiable instrument means a
written document by way of which a transferable right is created in favour of a person. As per
the Act, `negotiable instrument’ refers to a promissory note, bill of exchange or cheque.
The Act defines Cheque as follows: A “cheque” is a bill of exchange drawn on a specified
banker and not expressed to be payable otherwise than on demand and it includes the electronic
image of a truncated cheque and a cheque in the electronic form.
A bank dishonours cheques on various grounds namely on account of Insufficient Funds, Stop
Payment Instructions by drawer, Post dated or Ante dated cheques, Cheque being ambiguous,
Signature of drawer not tallying, Signature of all joint holders being missing, Cheque is
mutilated or materially altered, Funds available but not applicable to the payment of cheque,
Death of drawer or insanity of drawer, Drawer becoming insolvent, Amount in words and figures
on tallying, Date on cheque missing and on Closure of Account. However an offence under
Section 138 of the Act is not committed on happening of all of the above mentioned events. A
statutory offence under Section 138 is said to be committed only when the cheque is dishonoured
on the following grounds:-
a) Insufficiency of funds
c) Closure of account
An Offence under Section 138 is said to be committed on the happening of the following
conditions:-
1) A cheque drawn by a person should be on an account maintained by him in existence with the
banker. Such a cheque should have been drawn for discharge in full or in part of any debt or any
other liability of the drawee
2) The Cheque should have been presented by the drawee to the bank within six months from the
date of its issue or within the period of its validity
3) The Cheque should be returned by the bank for the reasons unpaid due to insufficiency of
funds or payment stopped by the drawer of cheque. Even if the cheque is returned by bank with
an endorsement of "account closed" then section 138 of negotiable instrument act is attracted
4) Production of bank’s slip or memo having thereon the official mark denoting that the cheque
has been dishonoured shall be prima facie evidence of dishonour of cheque.
5) On dishonour of cheque the drawee of the cheque has to give a notice in writing to the drawer,
making a demand for payment of the said amount of money. Such notice must be given within
30 days from the date of information by the bank regarding the dishonour of cheque. Such notice
shall state that if payment within a period of fifteen days is not made then action under Sec 138
of Negotiable Instrument Act will be initiated by the drawee against the drawer.
6) A period of fifteen days is allocated to the drawer of the cheque to make payment to the
drawee. If the drawer of the cheque fails to pay the requisite amount with the stipulated time
frame then cause of action for initiating proceedings against him under this Act shall arise. A
criminal complaint can filed within a period of thirty days from the date on which the cause of
action arose.
Filing of a Complaint :-
a) Complaint should be filed within the period of one month as mentioned above
Legal Jurisdiction: Prosecution can be initiated against the drawer at any of the following
places:-
Penal Provisions:- a) Imprisonment for a term extending upto 2 years b) Fine of an amount
extending upto twice the amount of the cheque bounced or both the provisions.
Action under both laws civil and criminal can be initiated at the same time: -
Civil and criminal proceedings are co- extensive and not co-exclusive. If the elements of the
offence under section 138 of the Negotiable Instruments Act are made out on the face of the
complaint petition itself, then there is nothing in law to prevent the criminal courts from taking
cognizance of the offence and vice-versa.
In M. M. Malik v. Prem Kumar Goyal the Punjab and Haryana High Court has analyzed the
aforesaid sections and held that the cause of action will arise only when the drawer of cheque
fails to make payment within 15 days of the receipt of the notice. After expiry of such fifteen
days an offence under this Act shall be deemed to have been committed.
Ques3 (a) what is “Company”? Discuss its characteristics along with the principles laid down by
House of Lords in the case of “Salomon Vs Salomon & Co. Ltd”.
Answer 3 (a)
Company
The word 'Company' is an amalgamation of the Latin word 'Com' meaning "with or together" and
'Pains' meaning "bread". Originally, it referred to a group of persons who took their meals
together. A company is nothing but a group of persons who have come together or who have
contributed money for some common person and who have incorporated themselves into a
distinct legal entity in the form of a company for that purpose. Under Halsbury’s Laws of
England, the term "company" has been defined as a collection of many individuals united into
one body under special domination, having perpetual succession under an artificial form and
vested by the policies of law with the capacity of acting in several respect as an individual,
particularly for taking and granting of property, for contracting obligation and for suing and
being sued, for enjoying privileges and immunities in common and exercising a variety of
political rights, more or less extensive, according to the design of its institution or the powers
upon it, either at the time of its creation or at any subsequent period of its existence. However,
the Supreme Court of India has held in the case of State Trading Corporation of India v/s CTO
that a company cannot have the status of a citizen under the Constitution of India.
A company as an entity has several distinct features which together make it a unique
organization. The following are the defining characteristics of a company :-
On incorporation under law, a company becomes a separate legal entity as compared to its
members. The company is different and distinct from its members in law. It has its own name
and its own seal, its assets and liabilities are separate and distinct from those of its members. It is
capable of owning property, incurring debt, borrowing money, having a bank account,
employing people, entering into contracts and suing and being sued separately.
Limited Liability :
The liability of the members of the company is limited to contribution to the assets of the
company upto the face value of shares held by him. A member is liable to pay only the uncalled
money due on shares held by him when called upon to pay and nothing more, even if liabilities
of the company far exceeds its assets. On the other hand, partners of a partnership firm have
unlimited liability i.e. if the assets of the firm are not adequate to pay the liabilities of the firm,
the creditors can force the partners to make good the deficit from their personal assets. This
cannot be done in case of a company once the members have paid all their dues towards the
shares held by them in the company.
Perpetual Succession:
A company does not die or cease to exist unless it is specifically wound up or the task for which
it was formed has been completed. Membership of a company may keep on changing from time
to time but that does not affect life of the company. Death or insolvency of member does not
affect the existence of the company.
Separate Property:
A company is a distinct legal entity. The company’s property is its own. A member cannot claim
to be owner of the company's property during the existence of the company.
Transferability of Shares:
Shares in a company are freely transferable, subject to certain conditions, such that no share-
holder is permanently or necessarily wedded to a company. When a member transfers his shares
to another person, the transferee steps into the shoes of the transferor and acquires all the rights
of the transferor in respect of those shares.
Common Seal:
A company is a artificial person and does not have a physical presence. Therefore, it acts through
its Board of Directors for carrying out its activities and entering into various agreements. Such
contracts must be under the seal of the company. The common seal is the official signature of the
company. The name of the company must be engraved on the common seal. Any document not
bearing the seal of the company may not be accepted as authentic and may not have any legal
force.
A company can sue or be sued in its own name as distinct from its members.
Separate Management:
A company is administered and managed by its managerial personnel i.e. the Board of Directors.
The shareholders are simply the holders of the shares in the company and need not be necessarily
the managers of the company.
One Share-One Vote:
The principle of voting in a company is one share-one vote. I.e. if a person has 10 shares, he has
10 votes in the company. This is in direct contrast to the voting principle of a co-operative
society where the "One Member - One Vote" principle applies i.e. irrespective of the number of
shares held, one member has only one vote.
Mr. Salomon had his own business of boot manufacturing, etc. Since his children wanted to
be a part of the business as owners, Mr. Salomon sold his business to the New Company (the
company, he was planning to form) for a certain amount of money (40000 pounds). He was
selling his business to the new company as he knew that the COMPANY IS SEPARATE
LEGAL ENTITY. He needed 7 members (shareholders) to form that company.
But since the company still owes Mr. Salomon 20000 pounds, the company gives him
debentures of 10000 pounds and rest 10000 pounds were paid in cash, etc. Therefore he is a
SHAREHOLDER in the company, and now, a DEBENTURE HOLDER too. But he was a
DIRECTOR also. So, He was SHAREHOLDER, DIRECTOR & DEBENTURE HOLDER.
He was an ORDINARY SHAREHOLDER who would be paid after all the creditors are paid
IF THERE IS LIQUIDATION OF THE COMPANY.
After 1 year, the company went into Liquidation (because the liabilities were more than assets
by certain amount) and the creditors needed to pay. The LIQUIDATOR asked Mr. Salomon to
pay all the creditors since Mr. Salomon was the OWNER of the company. Salomon did not agree
with that. Because He (Salomon) was supposed to paid for his DEBENTURES. But the
Liquidator asked him to pay to Other Creditors!!!!!
TRIAL JUDGE VAUGHAN WILLIAMS agreed with Liquidator and asked SALOMON to
pay on behalf of the company since Salomon was the owner, but Salomon didn't agree. He
appealed to COURT OF APPEAL so that he (Salomon) didn't have to pay the debts owed to
creditors by the company. COURT OF APPEAL said that Salomon just found 6 people (his 5
children & wife) to form the company. Those 6 people are mere nominees of Mr. Salomon.
COURT OF APPEAL also asked Mr. Salomon to pay.
In this case it was established that the actions of a company, are that of the company and not of
the shareholders themselves. This is written into the Companies Act 1993 which states that “a
company is a legal entity in its own right separate from its shareholders” (Legislative Extracts,
School of Accountancy, 2001). This law separates the company as another individual
person/entity which will be held responsible for the fortunes of the company and separates all
blame from the directors/shareholders of the company except under situations where the veil is
lifted. This will however lead to situations where justice can not be carried out as people will
commit various injustices and hide behind the shield that the doctrine, in the case of Salomon V
Salomon and Co Ltd created.
Ques 3 (b) Write short notes on:-
Section 4 of the Companies Act, 1956 (the Act) prescribes dual test and
conceptually defines the Holding-Subsidiary company relationship. This is a
special provision extending the provisions of the Act to intra-company
relationships. Two significant factors which determine the relationships are
control and ownership. The business conduct of such companies are regulated in
certain respects and the effect of such regulations will result in treating another
company as a Subsidiary of the Holding company. With the result, the provisions
of the Act applicable to a public company will also apply to the subsidiary private
company. However, the character of private remains unchanged.
Board Control - The most common form of control in the case of bodies corporate
is controlling the composition of the Board without being a member of the
company. This may happen by direct control of the Board or through one or more
Subsidiaries. Be that as it may, the Board occupies a pre-eminent position in the
corporate hierarchy from the point of the view of enormous power it exercises and
control it secures over the management of another company. It is not merely an
economic unit but a power house. Considering these and other factors, the Act
rightly recognizes the structure of the Board as a manifestation of its inherent
strength and standing in the corporate structure.
India has made many great improvements over the last decade in achieving
economic growth and poverty reduction. The most significant advancement came
in 1991 when India removed governmental obstacles and allowed its doors to
open to foreign investment. Foreign Direct Investment (FDI) has emerged as an
eminent source of economic development and employment generation for
developing countries (including India) as it contributes in creating a more
competitive business environment, enhances enterprise development, human
capital formation and international trade integration.
A foreign company planning to set up business operations in India has the option
of either setting up as an Indian company or as a foreign company
1) As an Indian Company
2) As a Foreign Company
A branch office is not allowed to carry out manufacturing activities on its own but
is permitted to subcontract these to an Indian manufacturer. Branch Offices
established with the approval of RBI, may remit outside India, profit of the
branch, net of applicable Indian taxes and subject to RBI guidelines
D) Branch Office on Stand Alone Basis: Such Branch Offices would be isolated
and restricted to the Special Economic zone (SEZ) alone and no business
activity/transaction will be allowed outside the SEZs in India, which include
branches/subsidiaries of its parent office in India.
The above mentioned offices can undertake any permitted activities. Companies
have to register themselves with Registrar of Companies (ROC) within 30 days of
setting up a place of business in India.
No approval shall be necessary from RBI for a company to establish a branch
/unit in SEZs to undertake manufacturing and service activities subject to the
following conditions:
a. Such units are functioning in those sectors where 100% FDI is permitted.
b. Such units comply with part XI of the Companies Act(section 592 to 602)
Such offices can undertake activities permitted under the Foreign Exchange
Management (Establishment in India of Branch or Office or other place of
business) Regulations, 2000.
A Government company, means any company in which not less than fifty one per
cent of the paid-up share capital is held by the Central Government, or by any
State Government or Governments, or partly by the Central Government and
partly by one or more State Governments, and includes a company which is a
subsidiary of a Government company as thus defined.
1 Substituted by Act No. 65 of 1960, for the words and figures "sections 618, 619
and 620"
2 Substituted by Act No. 65 of 1960, for the words "share capital".
From the juristic point of view, a company is a legal person distinct from its
members. This principle may be referred to as “the veil of incorporation”. The
courts in general consider themselves bound by this principle. The effect of this
principle is that there is a fictional veil (and not a wall) between the company and
its members. That is, the company has a corporate personality which is distinct
from its members.
The human ingenuity, however, started using this veil of corporate personality
blatantly as a cloak for fraud or improper conduct. Thus it became necessary for
the courts to break through or lift the corporate veil or crack the shell of corporate
personality and look at the persons behind the company who are the real
beneficiaries of the corporate fiction.
“The doctrine laid down in Salomon v. Salomon & co. ltd has to be watched very
carefully. It has often been supposed to cast a veil over the personality of a limited
company through which the courts cannot see. But that is not true. The courts can
and often do draw aside the veil. They can, and often do, pull off the mask. They
look to see what really lies behind.”
Judicial Exceptions:
4. Where the company is a sham: The courts also lift the veil where a company
is a mere cloak or sham (hoax).
8. Protecting Public Policy: The courts invariable lift the corporate veil to protect
the public policy and prevent transaction contrary to public policy. Thus
where there is a conflict with public policy, the courts ignore the form and
take into account the substance.
Statutory Exceptions
Ques4 (a) what are the qualifications and disqualifications of a Director in a Company?
Answer 4 (a)
A Company
Constitution
A Public Company having A paid up capital of Rs. 5 crore or more and One thousand or
more shareholders Can elect a director by small shareholders.
Subscribers of the memorandum who are individuals, are deemed to be the directors of
the company, until the directors are duly appointed in accordance with the Act.
A company can have a maximum number of 12 directors and to increase this number,
the approval of Central Government is required.
The board of directors can appoint Additional Directors, by passing a resolution, if such
a power exists in the articles.
If any vacancy arises in office of any director then subject to the articles, the board of
directors can fill the vacancy at a meeting of the board.
One single resolution can appoint one director only and two or more.
A company, at a general meeting may, by ordinary resolution, increase or reduce the
number of its directors within the limits fixed in that behalf by its articles.
APPOINTMENT OF DIRECTOR
Any Person Can Be Eligible For Appointment To The Office Of Director At Any Annual
General Meeting, If:
DISQUALIFICATION OF DIRECTORS
he has been found to be of unsound mind by a Court of competent jurisdiction and the
finding is in force
he is an undercharged insolvent
he has been convicted by a Court of any offence involving moral turpitude and sentenced
in respect thereof to imprisonment for not less than six months, and a period of five years
has not elapsed from the date of expiry of the sentence
Ques4 (b) discuss the different modes of appointment of directors in the Companies?
Answer 4 (b)
Sec255 - Appointment of directors and proportion of those who are to retire by rotation.
(1) Unless the articles provide for the retirement of all directors at every annual
general meeting, not less than two-thirds of the total number of directors of a
public company, or of a private company which is a subsidiary of a public
company, shall
(b) save as otherwise expressly provided in this Act, be appointed by the company
in general meeting.
(2) The remaining directors in the case of any such company, and the directors
generally in the case of a private company which is not a subsidiary of a public
company, shall, in default of and subject to any regulations in the articles of the
company, also be appointed by the company in general meeting.