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,

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.

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