Free Transferability of Securities of Public Companies
However, if it is felt that any transfer of securities is in contravention
of any of the provisions of the Securities and Exchange Board of India Act,
1992, or regulations made thereunder or the Sick Industrial Companies (Special
Provisions) Act, 1985, or any other law for the time being in force, the company,
'depository', 'participant', investor, or SEBI can, within 2 months from the
date of transfer in the depository or from the date on which the instrument
of transfer or the intimidation of transmission was delivered to the company,
move an application to the Company Law Board (CLB) to determine if the alleged
contravention has taken place.
After enquiry if the CLB is satisfied of the contravention, it can direct the company/depository to make rectification in the ownership records.
Pending the completion of enquiry, the CLB can suspend the voting rights in respect of securities so transferred. However, the transferee in such cases will enjoy the economic rights attached to the security, as also the right to further transfer the security to another person.
Even if the transfer of securities is in contravention of any law, the transfer is the be effected subject to subsequent rectification by the direction of CLB.
Right of Appeal
As per Section 111, as amended by the Depositories Act, 1996, if a private company refuses, on any ground not stated in the restrictions contained in its Articles of Association, to register the transfer of any shares, the transferor or transferee may prefer an appeal to the CLB against the refusal.
The appeal must be filed within 2 months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within 4 months from the date on which the instrument of transfer was delivered to the company.
The appeal shall be made be a petition in writing and shall be accompanied by the prescribed fee.
After receiving the petition, the CLB shall issue notices to the company, the transferor and the transferee in order to provide them an opportunity to make their representations.
On the consideration of the whole case, if the refusal does not seem justified, the CLB will issue an order to the company to register the transfer, which must be given effect to, within 10 days of the receipt of the order.
The CLB may also make such consequential orders regarding payment of dividend or the allotment of bonus or right shares as it thinks fit and just.
If default is made in giving effect to the orders of the CLB, fines and penalties are to be imposed on the company and on every defaulting officer upto Rs. 10,000 with a further fine extending to Rs. 1,000 for every day during which the default continues.
The Right of Appeal is not available in the case of a private company.
The provisions of Section 111 apply to transfer of debentures as also to transmission of shares and debentures.
Position of Transferee, if his Appeal Fails
The ordinary result of a refusal to register a transfer of shares is that the transferor will be the trustee for the transferee, in respect of the rights relating to the shares or if the transferee so chooses he may sue the transferor for return of the consideration for the transfer under Section 65 of the Indian Contract Act.
Where a transfer of shares is refused the transferor continues to be the legal owner thereof so far as the company is concerned.
Restrictions upon Acquisition or Transfer of Shares in Certain Cases
Section 108A to 108I deal with restrictions on the acquisition or transfer of shares in certain cases with a view to preventing or regulating transfer of shares so as to ensure that by such transfer of shares, management does not pass into the hands of undesirable persons, thereby adversely affecting the interests of non-controlling shareholders and public financial institutions.
It is applicable to the acquisition of transfer of shares by, or to, an individual, firm, group, constituent of group, body corporate or bodies corporate under the sane management who or which -
(a) is the owner in relation to a dominant undertaking, or
(b) would be, as a result of such acquisition or transfer, the owner of a dominant undertaking.
The restrictions contained in Section 108A (except sub-section 2 thereof) shall not apply to the transfer of any shares to, and the restrictions contained in Sections 108B to 108D shall not apply to the transfer of any shares by -
(a) Any Government company;
(b) Any corporation established by or under any Central Act, and
(c) Any financial institution.
1. Restriction on the acquisition of shares.
2. Restrictions on transfer of shares.
3. Restriction on the transfer of shares of foreign companies.
4. Power of Central Government to direct companies not to give effect to the transfer.
Procedure for the Transfer of Shares
When a share warrant to bearer has been issued, no procedure for transfer of such shares is to be followed.
In the case of registered shares for which a share certificate has been issued, certain legal requirements have to be complied with,
Share can be transferred by a person, whose name appears in the Register of Members; but a legal representative of a deceased member, can also transfer shares.
Oral transfers are not recognised by the Act.
Transfers made during winding up are void unless sanctioned by the Liquidator (in case of voluntary winding up) or by the Court (in other types of winding up).
In addition to complying with the provisions of the Articles relating to transfer of shares the following procedure must be followed:
1. An instrument of transfer should be executed in the 'form' prescribed by the Government, and before it is signed by the transferor and before any entry is made in it, it should be presented to the prescribed authority, who will stamp the date of presentation thereon.
2. The instrument of transfer must be duly filled and signed by the transferor and the transferee. It must also be duly dated and stamped and the relative share certificate must be attached to it. If no such certificate has yet been issued, the letter of allotment must be attached to the transfer form.
3. The completed transfer form along with the registration fee, if any, should be delivered at the company's head office, for registration, either by the transferor or the transferee,
(a) In case of quoted shares on the stock exchange, before the first closure of the register of members after the stamped date, or within 12 months from the date of such presentation, whichever is later;
(b) In the case of unlisted shares, within 2 months from the date of presentation to the prescribed authority.
The Central Government may extend these time periods on application to avoid hardship. The application should be made to the Regional Director of the CLB by the purchaser or his broker. These time limits have been prescribed to do away with the evil of Blank Transfers.
4. Next, in case the application is made by the transferor and relates to partly paid-up shares, the company must give notice of the application to the transferee and register the transfer only if the transferee makes no objection to transfer within 2 weeks from the receipt of the notice.
No response from transferee shall be presumed his consent for registration. No such consent need be given where the application for registration of transfer is made by the transferee himself, but in order to be sure that the instrument of transfer is genuine, a notice should be sent to the transferor, informing him about the lodgement of the instrument of transfer and stating that if no objection is raised within the specified time, the company will proceed to register the transfer.
5. If no objection is received either from the transferor or transferee within the specified time, then the work of registration of transfer is taken up. Now the secretary enters the details of the transfer in the Register of Transfers.
6. The secretary then convenes a meeting of the Board of Directors and places before it the Instruments of Transfer along with the share certificates and the Register of Transfers for their approval. If satisfied, the Board passes a resolution approving the transfer(s).
7. After all the steps have been duly complied with, the company registers the transfer by striking off the transferor's name from the Register of Members and entering the name of the transferee in its place. An endorsement is made on the back of the share certificate, recognising the transferee as the new holder for it and the same is issued to the transferee within 2 months of the date of lodgement of the transfer. A listed company is, required to issue Certificates within 1 month.
The procedural requirements associated with transfer, shall not apply to the transfer effected by the transferor and transferee who have availed the services of 'depository' since there is no need of executing a transfer deed.
Secretarial Duties For Transfer Of Shares
1. The secretary has to ascertain that there is adequate provision regarding transfer of shares in the Articles Of Association of the company.
2. On receipt of proper instrument of transfer, called the 'Transfer Deed' duly stamped and executed by the transferor and the transferee together with the transfer fee, if payable, he has to see that it is accompanied by a share certificate in the name of the transferor or the transfer should be a 'certified' one and that it is submitted within the prescribed limit as required under Section 108.
3. It is the responsibility thereafter to scrutinise the instrument of transfer and the relevant share certificate, giving particular attention to the following points:
(a) The signature of the transferor must tally with the specimen signature as recorded with the company, if the transferor is the registered holder of the shares; otherwise the signature should be verified from the previous Transfer Deed where the present transferor is the owner of shares earlier transferred to him by the registered shareholder. If the transfer has been executed by an attorney, the registration of the power of attorney should be verified. If transferor is a company, the transfer should be executed under the common seal.
(b) The details of the transferee have been correctly completed.
(c) The signature and address of the witness are in order.
(d) The stamp of the delivering broker and the lodging agent (if this is not the same as the delivering broker).
(e) Any alteration in the 'Transfer Deed' is properly initialled by both the transferor and transferee.
(f) The distinctive numbers of shares both in the Instrument of Transfer and the Share Certificate agree.
(g) The consideration for the transfer as shown in the 'Transfer Deed' is reasonble.
(h) Share transfer stamps have been affixed on the Transfer Deed at the rate 50 paise for every Rs. 100 or part thereof calculated on the amount of consideration.
(i) The fact that there is no restraint on transfer or that no duplicate share certificate has been issued must be checked from the Register of Members.
4. If the transferee is a company incorporated under the Companies Act, the secretary must confirm that the company is authorised to acquire shares by its Memorandum and Articles of Association.
5. In the case of transfer of shares of Indian companies by persons resident outside India, or by foreign nationals, to other persons whether resident in India or outside India, and in the case of transfer of shares to any person, whether Indian or foreigner, whether resident or non-resident, the secretary should also see that the necessary approval of the Exchange Control Department, Reserve Bank of India, under the Foreign Exchange Management Act, 1999, has already been obtained by the transferor or transferee before effecting any transfer or sale of shares.
6. If everything is well after the scrutiny of 'Transfer Deed' etc., the secretary should issue 'Notices of Lodgement of Transfer' to the transferee and transferor and wait for atleast a fortnight to see whether any objections are received from them.
7. If no objection is received, all transfers must then be recorded in the Transfer Register.
8. The secretary should convene a Board meeting to pass the necessary resolution for the registration of transfers.
9. After the resolution is passed, the secretary must see that the name of the transferee is recorded in the Register of Members and the name of the transferor is removed therefrom. Necessary endorsement is made on the back of the share certificate(s) and the same is issued to the transferee.
Certification of Transfer
When a company certifies on the instrument of transfer that the relative share certificate of the shares proposed to be transferred, has been lodged with it, it is called 'certificate of transfer.' Certification of transfer is necessary when there is a part disposal of shares or there are multiple purchasers.
The company issues only 1 share certificate for the whole lot of shares standing in the name of 1 person.
For a valid transfer, relevant share certificate must be attached to the instrument of transfer.
In view of these facts, there a arises a problem in case the shareholder wants to sell only a part of his shareholding or there are 2 more buyers.
There are 2 alternatives open to such a transferor to solve this problem
(a) He may request the company to cancel the original certificate and in exchange to issue the new split certificates of desired denomination.
(b) He may send his share certificate, together with the instruments of transfer, to the company for certification purposes.
The company usually takes time in issuing 'split certificates' which causes inconvenience to both the transferor and transferee and therefore, in practice, generally, 'certification of transfer' is considered desirable.
On all stock exchanges, 'certified transfer' is recognised as equivalent to a 'transfer form' plus the relative share certificate.
Such certification would not in any way guarantee the title of the transferor, but the company shall be responsible to the third party, acting bona fide on the certification of transfer, for damages, if it was issued by the company negligently or fraudulently.
Under Section 112(3)
(a) An instrument of transfer shall be deemed to be certified if it bears the words 'Certificate Lodged' or words to that effect.
(b) The certification of an instrument of transfer shall be deemed to be made by a company, if -
(i) the person issuing the certificated instrument is a person authorised to issue such instruments of transfer on the company's behalf; and
(ii) the certification is signed by any officer or servant of the company or any other person authorised to certificate transfers on the company's behalf, or if a body corporate has been authorised, by any officer or servant of that body corporate.
(c) A certification shall be deemed to be signed by the person whose signature appears on the instrument unless it is shown that the signature was placed there neither by himself nor by any other person authorised to use the signature for the purpose of certificating transfers on behalf of the company.
1. For certification of transfer, the transferor executes the instrument of transfer and presents it along with the relevant share certificate to the company.
2. After a preliminary scrutiny, the secretary stamps the instrument of transfer with a rubber Certification Stamp in the left hand corner, and puts his signature.
3. At the same time he cancels the original share certificate by affixing a rubber stamp bearing the word, 'Cancelled' on the face of it and makes a note of the relevant facts, namely, date of certification, name of transferee, number of shares transferred, etc., on the back of the cancelled share certificate.
4. These particulars of the certified transfer are also entered in a 'Register of Certified Transfers'.
5. After certification of transfer, the secretary sends the Certified Transfer Form(s) and a Balance Ticket (for the balance of shares not to be transferred) to the transferor.
6. In case the shareholder disposes of the whole of his holdings to two or more transferees, no 'Balance Ticket' is issued.
7. The transferor retains the 'Balance Ticket' and forwards the 'Certified Transfer Form' to the transferee, who then signs it and delivers the same to the company's registered office for registration.
8. In the due course, after observing the necessary formalities as mentioned earlier, the secretary's office will prepare 2 share certificates which will be issued to the transferor and the transferee.
Splitting of Joint Holdings of Shares
If the joint shareholders want splitting of their joint holding of shares and registering them in their individual names, they have to follow the procedure prescribed for transfer of shares.
An instrument of transfer properly stamped and completed is necessary for registering the transfer in each case, as converting a joint holding into a separate holding is essentially a transfer from joint ownership into individual ownership.
The instrument of transfer will have to be executed by all the joint holders as transferors and by the individual in whose name the shares are to be registered as the transferee.
Effect of Transfer Before its Registration
As regards the rights and the liabilities of the transferor of shares, Lindley, L.J., observed "when a member transfers his shares, he transfers all his rights and obligations as a shareholder as from date of the transfer. He does not transfer the dividends already announced nor does he transfer his liability in respect to the calls already made; but he transfers his rights to future payments and in respect of future calls."
But with concern to the company, transfer does not take effect unless it is registered during the period when transfer exists and if registration is not done, the transferee is liable to indemnify the transferor against future calls paid by him in respect to the shares and the transferor must pay any dividend to the transferee he may have received. The party can modify this by agreeing to transfer the shares "cum" (with) dividend or "ex" (without) dividend.
The provisions of Section 27 of the Securities Contracts (Regulation) Act, 1956 states that it shall be lawful for the person whose name appears in the books of the company as the holder of the securities to receive any dividend declared by the company in respect thereof for any year, even if the transfer of shares has already taken place, unless the transferee who claims the dividend from the transferor, has lodged the security & all other documents relating to the transfer with the company for registered within 15 days of the due date of the dividend.
Right To Dividend to be held in abeyance pending Registration of Transfer of Shares
With a view to protect the investors a new Section 206A has been inserted in the Companies (Amendment) Act, 1988. This new Section provides that in case of share transfers pending registration, the dividend accruing on such shares shall be transferred to the "Unpaid Dividend Account" (referred in Section 205A) unless the transferor authorises the company in writing to pay the same to the transferee specified in such instrument of transfer. The company shall also keep in abeyance in relation to such shares the offer of "right shares" and issue of fully paid bonus shares until the transfer is registered.
When the instrument of transfer duly signed and completed by the transferor, but leaving the name and signature of the transferee blank, is delivered to the transferee along with the relevant share certificate, it is called a "blank transfer."
In order to curb the abuse inherent in the system of blank transfers, Section 108 (1-A) of the Amending Act, 1965, has the following procedure for transfer of shares with respect to restrict the period of currency of blank transfers:
1. Every instrument should be in the prescribed form and is to be presented to the Registrar of Companies before it is signed by the transferor or any entry is made therein, who will stamp thereon the date of presentation.
2. The instrument so stamped, after it is completed in all other respects by the transferor and transferee, be delivered to the company for registration within the period stated below:
(a) In the case of shares dealt in or quoted on a recognised stock exchange, at any time before the first closure of the Register of Members after the stamped date, or within 12 months from the date of such presentation, whichever is later; and
(b) In the case of unlisted shares, within 2 months from the date of presentation to the prescribed authority.
The restriction of the time limits given in the previous slide does not apply to the transfer of following shares [Sec. 108(1-C) & (1-D)]:
1. Any shares: (i) which are held by a company in the name of a director or nominee in pursuance of Section 49(2) & (3), or (ii) which are held by a corporation, owned and controlled by the Government, in the name of a director or nominee, if the following conditions are fulfilled:
(a) The company or corporation, as the case may be, stamps on the form of transfer in respect of such shares, the date on which it decides that such shares shall not be held in the name of the director or nominee; and
(b) The instrument of transfer, duly completed in all respects, is delivered to the company concerned for registration within 2 months of the date so stamped.
2. Any shares deposited by any person with (i) State Bank Of India, or (ii) any scheduled bank, or (iii) any other banking company or financial institution, or (iv) the Government or a corporation owned and controlled by the Government, by way of security for the repayment of any loan or advance to, or for the performance of any obligation undertaken by, such person, if the following conditions are fulfilled:
(a) The depositee stamps on the form of transfer of such shares (i) the date on which such shares are returned by it to the depositor, or (ii) in the case of default on the part of the depositor, the date on which such shares are released for sale, or (iii) where the depositee intends to get such shares registered in its own name, the date on which the instrument of transfer relating to such shares is executed by it; and
(b) The instrument in such form, duly completed in all respects, is delivered to the company for registration within 2 months of the date so stamped.
3. Any shares which are held by the Central or State Government in the name of its nominee, except that every instrument of transfer in respect of any such shares shall be in the prescribed form.
The Central government may on application extend the periods mentioned above by such further time as it may deem fit.
It must be noted that the blank transfers are not negotiable instrument, and therefore, a bona fide purchaser of shares from a person who is in possession of them by fraud, does not acquire a good title to them.
When a instrument of transfer bears a forged signature of the rightful owner, it is called a 'forged transfer'. It is null and void even if it is registered by the company. But if in the meantime, that share certificate is transferred subsequently to another person, who acquires the shares in good faith, for value and under a genuine transfer, by the first transferee, and the company registers this and issues a new certificate to him, the company is stopped from denying the title, since the share certificate is prima facie evidence of the title.
Company's action on the fraud
The company is in two minds now since on one hand the company on discovery of the fraud has to restore the name of the true owner and on the other it has to compensate the subsequent transferee, who was acting on genuine transfer. The damages will be the market value of that shares at that time. The company can claim the indemnity from the defrauded transferee. Any person claiming damages must prove that he sustained losses by acting on faith of a share certificate issued by the company.
In order to do away with theft, mismatch of signature, huge paperwork and other irregularities, the Government of India enacted the Depositories Act, 1996 to provide for legal framework to set up depositories to record the ownership details of securities and effecting the transfer of securities through book entry only. In this system transfer does not take place physically but by mere book entry in the ledgers of the Depository.
This Act states that the agents of each depository will be called as 'participants' who will be a link between the investors and the depository. An investor will have to enter into an agreement with the depository through a participant and surrender his shares to the company concerned.
The company cancels the name of the investor and enters the name of the depository and informs the depository and on receiving this information the depository enters the name of investor as beneficial owner and so the investor enjoys all the rights and is subject to all the liability. For transfer the investor will intimate the participant who in turn informs the depository. The depository thus deletes the name of the investor and records the name of transferee. With regard to the transfer under depository system Section 108 of the Companies Act are dispensed with.
1. Partial dematerialization of securities. The investor can go in for complete or partial dematerialization i.e. he can have a part of his securities under the depository system and the remaining part will be in the physical form.
2. Securities will be fungible. Sections 83 ,150 and 152 of the Companies Act have been amended to make the securities fungible. Now the securities held with a depository will have no distinctive identifiable numbers and all the certificates of the same security will become interchangeable.
3. It would become freely transferable. The securities issued by a public company(other than a deemed public company) have been made freely transferable under the Depositories Act. This Act has deleted Section 22A of the Securities Contracts (Regulation) Act, 1956 and by inserting Section 111A in the Companies Act.
4. No stamp duty. Within the depository system there is no stamp duty on transfer of shares but outside the depository there is.
It is claimed that this system will enhance the efficiency and also provide huge benefits to the investors as well.
Transmission of shares is the result of operation of Law and it takes place only on the death, insolvency or lunacy of the share holder.
Transfer Vs Transmission
|1. By a deliberate act.||1. By the operation of law.|
|2. Requires the execution of formal instrument of transfer.||2. Requires an evidence showing the legal entitlement.|
|3. There must be adequate consideration.||3. There is no question of consideration.|
|4. Stamp duty is payable.||4. Stamp duty is not payable.|
Procedure For Transmission
There are two alternatives open to the legal representative. Either he may get himself registered as the member or he may transfer the shares to some other person.
If he chooses the first option then the company will check the genuineness of the share certificates and the succession certificate and if satisfied the company will delete the name of the deceased member and include the name of the legal representative and issue fresh certificates to him.
If he chooses option two, he can follow the usual process for transfer of shares but he has to attach one more document with it i.e., the succession certificate. If the company refuses to register the transmission then the 'Right of Appeal' to the Company Law Board is available to the legal representative.
Secretarial Duties in Connection with the Transmission of Shares
The secretarial duties in connection with transmission are :
1. The secretary has to check up that the 'Letter of Request' is a proper one. Letter of Request is the request of legal representative to register his name in place of the deceased subject to the conditions on which the deceased held the shares.
2. He has to ensure that satisfactory proof of title has been attached to the Letter of Request. He should also see the 'Letter of Probate' if the member had died testate, i.e., leaving a 'will,' or the 'Letter of Administration' if the member has died intestate. In case of bankruptcy, his estate is vested to the Assignee appointed by the Court and in case of lunacy, his estate is vested to the Administrator appointed by the Court. The secretary must check that the Administrator has produced the documentary proof of their appointment from a competent Court.
3. If the legal representative has to transfer the shares, he must attach any 'Probate', 'Succession Certificate' or 'Letter of Administration' with the 'instrument of transfer.' On receipt of proper 'instrument of transfer' the duties of a secretary are as same as while in transfer of shares.
4. Finally, the secretary should convene a Board meeting to pass the resolution and thereafter he should introduce necessary alteration in share certificates and Register of Members. He should enter the details of the Probate, Letters of Administration, Succession Certificates in the Register of Probates.
Transfer and Transmission of Debentures
All the provision of transfer and transmission of shares are same to debentures. But the difference are:
1. The transfer deed is not required to be presented to the prescribed authority for stamping and even if it is presented, it does not become out of date as in case of shares.
2. The stamp duty is calculated on the face value of the debentures and not on the amount of consideration.
Nomination of Shares and Debentures
The Companies (Amendment) Act, 1999 introduced nomination facility by inserting a new sub section (11) in Section 58A and two new Sections 109A and 109B which provides:
1. The member nominates a person to whom his shares and debentures are given in the event of the death of the member.
2. The joint holders of the shares nominates a person to whom their shares and debentures are given in the event of the death of all the members.
3. Such nomination will supersede any 'will' or disposition, whether testamentary or otherwise.
4. It can be cancelled or varied by the security holder at any time.
5. Where the nominee is a minor, the security holder nominates another person who takes care of the shares till the nominee attains majority in the event of the death of security holder during the minority of the nominee.
Procedure for Nomination
The security holder has to make nomination in Form 2B prescribed by Rule 5D of the Companies (Central Government's) General Rules And Forms, (Fourth Amendment) Rules, 2000 which states:
1. Nomination can be done only by single holder or joint holder and not by any corporate body.
2. If held jointly, all the joint holders have to sign the nomination form.
3. Nomination should be made in favour of individuals only.
4. Minor can be nominated, but during minority of the nominee, all the rights are exercised by the guardian.
5. Nomination stands rescinded upon transfer of shares or debentures.
6. The Nomination Form is filled in duplicate with the Company or Registrar & Share Transfer Agents of the Company who will return one copy to the shareholder.
7. No fee is payable to the company.
The rights of nominee after transmission are similar to the rights of legal representative after transmission.
Right of Nominee after Transmission of shares and debentures
On the death of the security holder, who has availed the facility of nomination, the transmission of shares and debentures to the nominee takes place. The rights of the nominee after transmission are governed by the provisions of Section 109B which are as follows:
1. The nominee may either get himself registered as the security holder or may transfer the securities to some other person. If he does not opt for any of these options the Board of Directors send a notice asking for a decision. If he does not comply within 90 days of the notice, the company may withhold the payment of dividend, bonus or any other moneys payable, until the requirements have been complied with.
2. In case the nominee elects to be registered as the security holder himself, he will send a notice in writing for the same to the company along with the relevant share/debenture & the death certificate.
3. In case the nominee opts to transfer the shares/debentures, he will have to follow the usual procedure of transfer of shares/debentures, but along with the death certificate.
Book Referred: Secretarial Practice (16th Revised Edition) by M. C. Kuchhal from Vikas Publishing House Pvt. Ltd.