2017 (12) TMI 510 - HC - Companies Law

Directions for strict enforcement of the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016 by every company transferring shares to the second respondent (the Investor Education and Protection Fund) and ensure that officials transferring the shares are made responsible for due certification of compliance with the Rules - Held that - What is clear is that the combined effect of the first and second amendments to the Rules, results in companies becoming aware adequately in advance of their obligations, especially towards notifying the shareholders about the transfer. This appears to be the main grievance of the petitioner. So far as the other aspect highlighted with regard to the non-publication of list of shareholders goes, this Court is of the opinion that without any details or reference to form etc. in this regard, it would be next to impossible to return a finding. These are causes that cannot and ought not to be gone into in public interest proceedings. To summarize, the Court holds that Section 124(6) does not result in a statutory vesting of any property; it merely transfers through transmission of shares in companies which have yielded dividends for seven years that have not been claimed. Such shares are then transferred to the Fund which then holds them as a custodian in whichever manner one would wish to say it. The Central Government further is mandated to devise appropriate procedures to enable shareholders to reclaim their property in the shares, by an appropriate procedure. For the duration of transfer of the shares, the companies cannot issue bonus shares or add anything prohibited under Section 126. As far as the operationalisation of this provision goes, the Rules, especially the first and second amendments had the effect of giving companies adequate time to notify and comply with the three month public notice period to their shareholders about the event of transfer. The Court also notices that the transfer of such shares or classes of shares is not a one-time measure but an ongoing event given the obligation of each company to identity such shares after the holding of every AGM. It is imperative that the Central Government gives publicity to the transfer of shares, by virtue of the provisions (not of individual companies) to inform the public, and ensures a simple as well as compact form with attendant procedure is notified, for reclaiming them.

Summary

Issues Involved:
1. Enforcement of the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016.
2. Transfer of unpaid dividends and shares to the Investor Education and Protection Fund (IEPF).
3. Compliance with the notification and procedural requirements under the Companies Act, 2013 and the 2016 Rules.
4. Legal implications and procedural clarity regarding Section 124(6) of the Companies Act, 2013.

Issue-wise Detailed Analysis:

1. Enforcement of the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016:
The petitioner, a non-profit company, sought directions for the strict enforcement of the 2016 Rules by every company transferring shares to the IEPF. The petitioner emphasized the need for officials to ensure due certification of compliance with the Rules. The petition highlighted the significant procedural requirements under Rule 3 and Rule 6 of the 2016 Rules, including the need for companies to identify unclaimed amounts and inform shareholders about the transfer of shares three months in advance.

2. Transfer of unpaid dividends and shares to the Investor Education and Protection Fund (IEPF):
The Companies Act, 2013, under Section 124(6), mandates the transfer of shares yielding unpaid dividends for over seven years to the IEPF. The petitioner argued that this radical change could lead to asset deprivation for shareholders unable to encash their dividends. The petition cited examples of significant shareholdings transferred by operation of law, highlighting the magnitude of the impact. The petitioner also pointed out that the Rules devised an impractical procedure, leading to amendments on 28.02.2017 and 13.10.2017 to address these issues.

3. Compliance with the notification and procedural requirements under the Companies Act, 2013 and the 2016 Rules:
The petitioner argued that the lack of clarity in the Rules and amendments by the Central Government resulted in confusion. The petition emphasized the importance of Rule 6(3), which mandates informing shareholders three months before the due date of transfer. The petitioner highlighted non-compliance by various companies, citing a sample survey where only four out of 25 companies complied with the Rules. The petition also pointed out that the amendments enabled shareholders to reclaim their shares, but the lack of clarity in the three-month notice period led to violations.

4. Legal implications and procedural clarity regarding Section 124(6) of the Companies Act, 2013:
The Court examined Section 124(6) and its implications. It noted that the provision does not result in a statutory vesting of property but merely transfers shares to the IEPF for safekeeping. The shareholder retains title but loses agency, and the company is relieved of the responsibility of holding the shares. The Court emphasized that the transfer of shares is an ongoing event, and companies must comply with the notification and procedural requirements. The Court also highlighted the need for the Central Government to give publicity to the transfer of shares and ensure a simple procedure for reclaiming them.

Conclusion:
The Court concluded that Section 124(6) does not result in statutory vesting of property and that the Rules, especially the first and second amendments, provided companies with adequate time to notify shareholders about the transfer. The Court emphasized the need for the Central Government to publicize the transfer of shares and ensure a straightforward procedure for reclaiming them. The petition was dismissed, and no orders or directions were deemed necessary.