Section 180: Restrictions on powers of Board
This section is for restricting the powers of the Board of Directors of a company and requiring special resolutions for certain transactions, such as selling or leasing the company's undertaking, borrowing money, and remitting debts due from directors.
The section, clause by clause
What the section says
In plain terms
(1)The Board of Directors of a company shall exercise the following powers only with the consent of the company by a special resolution, namely:— (a) to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the company or where the company owns more than one undertaking, of the whole or substantially the whole of any of such undertakings.
The Board of Directors of a company can only exercise certain powers with the company's consent through a special resolution, including selling or leasing the whole or substantially the whole of the company's undertaking, investing in trust securities, borrowing money that exceeds the aggregate of its paid-up share capital, free reserves, and securities premium, and remitting or giving time for the repayment of any debt due from a director.
explanationExplanation.—For the purposes of this clause,—
(1)(i)“undertaking” shall mean an undertaking in which the investment of the company exceeds twenty per cent. of its net worth as per the audited balance sheet of the preceding financial year or an undertaking which generates twenty per cent. of the total income of the company during the previous financial year;
(1)(ii)the expression “substantially the whole of the undertaking” in any financial year shall mean twenty per cent. or more of the value of the undertaking as per the audited balance sheet of the preceding financial year;
(1)(b)to invest otherwise in trust securities the amount of compensation received by it as a result of any merger or amalgamation;
(1)(c)to borrow money, where the money to be borrowed, together with the money already borrowed by the company will exceed aggregate of its 1[paid-up share capital, free reserves and securities premium], apart from temporary loans obtained from the company’s bankers in the ordinary course of business:
provisoProvided that the acceptance by a banking company, in the ordinary course of its business, of deposits of money from the public, repayable on demand or otherwise, and withdraw able by cheque, draft, order or otherwise, shall not be deemed to be a borrowing of monies by the banking company within the meaning of this clause.
explanationExplanation.—For the purposes of this clause, the expression “temporary loans” means loans repayable on demand or within six months from the date of the loan such as short-term, cash credit arrangements, the discounting of bills and the issue of other short-term loans of a seasonal character, but does not include loans raised for the purpose of financial expenditure of a capital nature;
(1)(d)to remit, or give time for the repayment of, any debt due from a director.
(2)Every special resolution passed by the company in general meeting in relation to the exercise of the powers referred to in clause (c) of sub-section (1) shall specify the total amount up to which monies may be borrowed by the Board of Directors.
Any special resolution related to borrowing money must specify the total amount up to which monies may be borrowed by the Board of Directors.
(3)Nothing contained in clause (a) of sub-section (1) shall affect—
The restrictions on selling or leasing the company's undertaking do not affect the title of a buyer who buys or takes on lease any property in good faith, or the sale or lease of any property where the ordinary business of the company consists of such selling or leasing.
(3)(a)the title of a buyer or other person who buys or takes on lease any property, investment or undertaking as is referred to in that clause, in good faith; or
(3)(b)the sale or lease of any property of the company where the ordinary business of the company consists of, or comprises, such selling or leasing.
(4)Any special resolution passed by the company consenting to the transaction as is referred to in clause (a) of sub-section (1) may stipulate such conditions as may be specified in such resolution, including conditions regarding the use, disposal or investment of the sale proceeds which may result from the transactions:
A special resolution consenting to a transaction can stipulate conditions regarding the use, disposal, or investment of the sale proceeds, but cannot authorise the company to effect any reduction in its capital except in accordance with the provisions contained in the Act.
provisoProvided that this sub-section shall not be deemed to authorise the company to effect any reduction in its capital except in accordance with the provisions contained in this Act.
(5)No debt incurred by the company in excess of the limit imposed by clause (c) of sub-section (1) shall be valid or effectual, unless the lender proves that he advanced the loan in good faith and without knowledge that the limit imposed by that clause had been exceeded.
Any debt incurred by the company in excess of the borrowing limit is not valid or effectual, unless the lender can prove that they advanced the loan in good faith and without knowledge that the limit had been exceeded.
The right-hand column is written from the section text, not quoted from it, and it has no legal force. Where the two differ, the left-hand column is the law.
Amendment notes
- 1. Subs. by Act 1 of 2018, s. 59, for “paid-up share capital and free reserves” (w.e.f. 9-2-2018).
Referred to by
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Reproduced from the official India Code print for reference. Check the current text on India Code before you rely on it, and read the section alongside its Rules. Nothing here is legal advice.