2. Definitions

In this Act, unless the context otherwise requires,—

(1) “abridged prospectus” means a memorandum containing such salient features

of a prospectus as may be specified by the Securities and Exchange Board by making

regulations in this behalf;

(2) “accounting standards” means the standards of accounting or any addendum

thereto for companies or class of companies referred to in section 133;

(3) “alter” or “alteration” includes the making of additions, omissions and

substitutions;

(4) “Appellate Tribunal” means the National Company Law Appellate Tribunal

constituted under section 410;

(5) “articles” means the articles of association of a company as originally framed

or as altered from time to time or applied in pursuance of any previous company law or

of this Act;

(6) “associate company”, in relation to another company, means a company in

which that other company has a significant influence, but which is not a subsidiary

company of the company having such influence and includes a joint venture company.

Explanation.—For the purposes of this clause, “significant influence” means

control of at least twenty per cent. of total share capital, or of business decisions

under an agreement;

(7) “auditing standards” means the standards of auditing or any addendum

thereto for companies or class of companies referred to in sub-section (10) of section 143;

(8) “authorised capital” or “nominal capital” means such capital as is authorised

by the memorandum of a company to be the maximum amount of share capital of the

company;

(9) “banking company” means a banking company as defined in clause (c) of

section 5 of the Banking Regulation Act, 1949;

(10) “Board of Directors” or “Board”, in relation to a company, means the

collective body of the directors of the company;

(11) “body corporate” or “corporation” includes a company incorporated outside

India, but does not include—

(i) a co-operative society registered under any law relating to co-operative

societies; and

(ii) any other body corporate (not being a company as defined in this Act),

which the Central Government may, by notification, specify in this behalf;

(12) “book and paper” and “book or paper” include books of account, deeds,

vouchers, writings, documents, minutes and registers maintained on paper or in

electronic form;

(13) “books of account” includes records maintained in respect of—

(i) all sums of money received and expended by a company and matters in

relation to which the receipts and expenditure take place;

(ii) all sales and purchases of goods and services by the company;

(iii) the assets and liabilities of the company; and

(iv) the items of cost as may be prescribed under section 148 in the case of

a company which belongs to any class of companies specified under that section;

(14) “branch office”, in relation to a company, means any establishment described

as such by the company;

(15) “called-up capital” means such part of the capital, which has been called for

payment;

(16) “charge” means an interest or lien created on the property or assets of a

company or any of its undertakings or both as security and includes a mortgage;

(17) “chartered accountant” means a chartered accountant as defined in

clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 who

holds a valid certificate of practice under sub-section (1) of section 6 of that Act;

(18) “Chief Executive Officer” means an officer of a company, who has been

designated as such by it;

(19) “Chief Financial Officer” means a person appointed as the Chief Financial

Officer of a company;

(20) “company” means a company incorporated under this Act or under any

previous company law;

(21) “company limited by guarantee” means a company having the liability of its

members limited by the memorandum to such amount as the members may respectively

undertake to contribute to the assets of the company in the event of its being wound

up;

(22) “company limited by shares” means a company having the liability of its

members limited by the memorandum to the amount, if any, unpaid on the shares

respectively held by them;

(23) “Company Liquidator”, in so far as it relates to the winding up of a company,

means a person appointed by—

(a) the Tribunal in case of winding up by the Tribunal; or

(b) the company or creditors in case of voluntary winding up,

as a Company Liquidator from a panel of professionals maintained by the Central

Government under sub-section (2) of section 275;

(24) “company secretary” or “secretary” means a company secretary as defined

in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 who

is appointed by a company to perform the functions of a company secretary under this

Act;

(25) “company secretary in practice” means a company secretary who is deemed

to be in practice under sub-section (2) of section 2 of the Company Secretaries

Act, 1980;

(26) “contributory” means a person liable to contribute towards the assets of

the company in the event of its being wound up.

Explanation.—For the purposes of this clause, it is hereby clarified that a

person holding fully paid-up shares in a company shall be considered as a contributory

but shall have no liabilities of a contributory under the Act whilst retaining rights of

such a contributory;

(27) “control” shall include the right to appoint majority of the directors or to

control the management or policy decisions exercisable by a person or persons acting

individually or in concert, directly or indirectly, including by virtue of their shareholding

or management rights or shareholders agreements or voting agreements or in any

other manner;

(28) “cost accountant” means a cost accountant as defined in clause (b) of subsection

(1) of section 2 of the Cost and Works Accountants Act, 1959;

(29) “court” means—

(i) the High Court having jurisdiction in relation to the place at which the

registered office of the company concerned is situate, except to the extent to

which jurisdiction has been conferred on any district court or district courts

subordinate to that High Court under sub-clause (ii);

(ii) the district court, in cases where the Central Government has, by

notification, empowered any district court to exercise all or any of the

jurisdictions conferred upon the High Court, within the scope of its jurisdiction

in respect of a company whose registered office is situate in the district;

(iii) the Court of Session having jurisdiction to try any offence under this

Act or under any previous company law;

(iv) the Special Court established under section 435;

(v) any Metropolitan Magistrate or a Judicial Magistrate of the First Class

having jurisdiction to try any offence under this Act or under any previous

company law;

(30) “debenture” includes debenture stock, bonds or any other instrument of a

company evidencing a debt, whether constituting a charge on the assets of the company

or not;

(31) “deposit” includes any receipt of money by way of deposit or loan or in any

other form by a company, but does not include such categories of amount as may be

prescribed in consultation with the Reserve Bank of India;

(32) “depository” means a depository as defined in clause (e) of sub-section (1)

of section 2 of the Depositories Act, 1996;

(33) “derivative” means the derivative as defined in clause (ac) of section 2 of

the Securities Contracts (Regulation) Act, 1956;

(34) “director” means a director appointed to the Board of a company;

(35) “dividend” includes any interim dividend;

(36) “document” includes summons, notice, requisition, order, declaration, form

and register, whether issued, sent or kept in pursuance of this Act or under any other

law for the time being in force or otherwise, maintained on paper or in electronic form;

(37) “employees’ stock option” means the option given to the directors, officers

or employees of a company or of its holding company or subsidiary company or

companies, if any, which gives such directors, officers or employees, the benefit or

right to purchase, or to subscribe for, the shares of the company at a future date at a

pre-determined price;

(38) “expert” includes an engineer, a valuer, a chartered accountant, a company

secretary, a cost accountant and any other person who has the power or authority to

issue a certificate in pursuance of any law for the time being in force;

(39) “financial institution” includes a scheduled bank, and any other financial

institution defined or notified under the Reserve Bank of India Act, 1934;

(40) “financial statement” in relation to a company, includes—

(i) a balance sheet as at the end of the financial year;

(ii) a profit and loss account, or in the case of a company carrying on any

activity not for profit, an income and expenditure account for the financial year;

(iii) cash flow statement for the financial year;

(iv) a statement of changes in equity, if applicable; and

(v) any explanatory note annexed to, or forming part of, any document

referred to in sub-clause (i) to sub-clause (iv):

Provided that the financial statement, with respect to One Person Company,

small company and dormant company, may not include the cash flow statement;

(41) “financial year”, in relation to any company or body corporate, means the

period ending on the 31st day of March every year, and where it has been incorporated

on or after the 1st day of January of a year, the period ending on the 31st day of March

of the following year, in respect whereof financial statement of the company or body

corporate is made up:

Provided that on an application made by a company or body corporate, which is

a holding company or a subsidiary of a company incorporated outside India and is

required to follow a different financial year for consolidation of its accounts outside

India, the Tribunal may, if it is satisfied, allow any period as its financial year, whether

or not that period is a year:

Provided further that a company or body corporate, existing on the

commencement of this Act, shall, within a period of two years from such commencement,

align its financial year as per the provisions of this clause;

(42) “foreign company” means any company or body corporate incorporated

outside India which—

(a) has a place of business in India whether by itself or through an agent,

physically or through electronic mode; and

(b) conducts any business activity in India in any other manner.

(43) “free reserves” means such reserves which, as per the latest audited balance

sheet of a company, are available for distribution as dividend:

Provided that—

(i) any amount representing unrealised gains, notional gains or revaluation

of assets, whether shown as a reserve or otherwise, or

(ii) any change in carrying amount of an asset or of a liability recognised

in equity, including surplus in profit and loss account on measurement of the

asset or the liability at fair value,

shall not be treated as free reserves;

(44) “Global Depository Receipt” means any instrument in the form of a

depository receipt, by whatever name called, created by a foreign depository outside

India and authorised by a company making an issue of such depository receipts;

(45) “Government company” means any company in which not less than fiftyone

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 company

of such a Government company;

(46) “holding company”, in relation to one or more other companies, means a

company of which such companies are subsidiary companies;

(47) “independent director” means an independent director referred to in

sub-section (5) of section 149;

(48) “Indian Depository Receipt” means any instrument in the form of a

depository receipt created by a domestic depository in India and authorised by a

company incorporated outside India making an issue of such depository receipts;

(49) “interested director” means a director who is in any way, whether by himself

or through any of his relatives or firm, body corporate or other association of individuals

in which he or any of his relatives is a partner, director or a member, interested in a

contract or arrangement, or proposed contract or arrangement, entered into or to be

entered into by or on behalf of a company;

(50) “issued capital” means such capital as the company issues from time to time

for subscription;

(51) “key managerial personnel”, in relation to a company, means—

(i) the Chief Executive Officer or the managing director or the manager;

(ii) the company secretary;

(iii) the whole-time director;

(iv) the Chief Financial Officer; and

(v) such other officer as may be prescribed;

(52) “listed company” means a company which has any of its securities listed on

any recognised stock exchange;

(53) “manager” means an individual who, subject to the superintendence, control

and direction of the Board of Directors, has the management of the whole, or

substantially the whole, of the affairs of a company, and includes a director or any

other person occupying the position of a manager, by whatever name called, whether

under a contract of service or not;

(54) “managing director” means a director who, by virtue of the articles of a

company or an agreement with the company or a resolution passed in its general

meeting, or by its Board of Directors, is entrusted with substantial powers of

management of the affairs of the company and includes a director occupying the

position of managing director, by whatever name called.

Explanation.—For the purposes of this clause, the power to do administrative

acts of a routine nature when so authorised by the Board such as the power to affix the

common seal of the company to any document or to draw and endorse any cheque on

the account of the company in any bank or to draw and endorse any negotiable

instrument or to sign any certificate of share or to direct registration of transfer of any

share, shall not be deemed to be included within the substantial powers of management;

(55) “member”, in relation to a company, means—

(i) the subscriber to the memorandum of the company who shall be deemed

to have agreed to become member of the company, and on its registration, shall

be entered as member in its register of members;

(ii) every other person who agrees in writing to become a member of the

company and whose name is entered in the register of members of the company;

(iii) every person holding shares of the company and whose name is

entered as a beneficial owner in the records of a depository;

(56) “memorandum” means the memorandum of association of a company as

originally framed or as altered from time to time in pursuance of any previous company

law or of this Act;

(57) “net worth” means the aggregate value of the paid-up share capital and all

reserves created out of the profits and securities premium account, after deducting the

aggregate value of the accumulated losses, deferred expenditure and miscellaneous

expenditure not written off, as per the audited balance sheet, but does not include

reserves created out of revaluation of assets, write-back of depreciation and

amalgamation;

(58) “notification” means a notification published in the Official Gazette and the

expression “notify” shall be construed accordingly;

(59) “officer” includes any director, manager or key managerial personnel or any

person in accordance with whose directions or instructions the Board of Directors or

any one or more of the directors is or are accustomed to act;

(60) “officer who is in default”, for the purpose of any provision in this Act

which enacts that an officer of the company who is in default shall be liable to any

penalty or punishment by way of imprisonment, fine or otherwise, means any of the

following officers of a company, namely:—

(i) whole-time director;

(ii) key managerial personnel;

(iii) where there is no key managerial personnel, such director or directors

as specified by the Board in this behalf and who has or have given his or their

consent in writing to the Board to such specification, or all the directors, if no

director is so specified;

(iv) any person who, under the immediate authority of the Board or any

key managerial personnel, is charged with any responsibility including

maintenance, filing or distribution of accounts or records, authorises, actively

participates in, knowingly permits, or knowingly fails to take active steps to

prevent, any default;

(v) any person in accordance with whose advice, directions or instructions

the Board of Directors of the company is accustomed to act, other than a person

who gives advice to the Board in a professional capacity;

(vi) every director, in respect of a contravention of any of the provisions

of this Act, who is aware of such contravention by virtue of the receipt by him of

any proceedings of the Board or participation in such proceedings without

objecting to the same, or where such contravention had taken place with his

consent or connivance;

(vii) in respect of the issue or transfer of any shares of a company, the

share transfer agents, registrars and merchant bankers to the issue or transfer;

(61) “Official Liquidator” means an Official Liquidator appointed under

sub-section (1) of section 359;

(62) “One Person Company” means a company which has only one person as a

member;

(63) "ordinary or special resolution" means an ordinary resolution, or as the

case may be, special resolution referred to in section 114;

(64) “paid-up share capital” or “share capital paid-up” means such aggregate

amount of money credited as paid-up as is equivalent to the amount received as paidup

in respect of shares issued and also includes any amount credited as paid-up in

respect of shares of the company, but does not include any other amount received in

respect of such shares, by whatever name called;

(65) “postal ballot” means voting by post or through any electronic mode;

(66) “prescribed” means prescribed by rules made under this Act;

(67) “previous company law” means any of the laws specified below:—

(i) Acts relating to companies in force before the Indian Companies

Act, 1866;

(ii) the Indian Companies Act, 1866;

(iii) the Indian Companies Act, 1882;

(iv) the Indian Companies Act, 1913;

(v) the Registration of Transferred Companies Ordinance, 1942;

(vi) the Companies Act, 1956; and

(vii) any law corresponding to any of the aforesaid Acts or the Ordinances

and in force—

(A) in the merged territories or in a Part B State (other than the State

of Jammu and Kashmir), or any part thereof, before the extension thereto

of the Indian Companies Act, 1913; or

(B) in the State of Jammu and Kashmir, or any part thereof, before

the commencement of the Jammu and Kashmir (Extension of Laws) Act,

1956, in so far as banking, insurance and financial corporations are

concerned, and before the commencement of the Central Laws (Extension

to Jammu and Kashmir) Act, 1968, in so far as other corporations are

concerned;

(viii) the Portuguese Commercial Code, in so far as it relates to sociedades

anonimas; and

(ix) the Registration of Companies (Sikkim) Act, 1961;

(68) “private company” means a company having a minimum paid-up share

capital of one lakh rupees or such higher paid-up share capital as may be prescribed,

and which by its articles,—

(i) restricts the right to transfer its shares;

(ii) except in case of One Person Company, limits the number of its

members to two hundred:

Provided that where two or more persons hold one or more shares in a

company jointly, they shall, for the purposes of this clause, be treated as a single

member:

Provided further that—

(A) persons who are in the employment of the company; and

(B) persons who, having been formerly in the employment of the company,

were members of the company while in that employment and have continued to

be members after the employment ceased,

shall not be included in the number of members; and

(iii) prohibits any invitation to the public to subscribe for any securities of

the company;

(69) “promoter” means a person—

(a) who has been named as such in a prospectus or is identified by the

company in the annual return referred to in section 92; or

(b) who has control over the affairs of the company, directly or indirectly

whether as a shareholder, director or otherwise; or

(c) in accordance with whose advice, directions or instructions the

Board of Directors of the company is accustomed to act:

Provided that nothing in sub-clause (c) shall apply to a person who is acting

merely in a professional capacity;

(70) “prospectus” means any document described or issued as a prospectus

and includes a red herring prospectus referred to in section 32 or shelf prospectus

referred to in section 31 or any notice, circular, advertisement or other document

inviting offers from the public for the subscription or purchase of any securities of a

body corporate;

(71) “public company” means a company which—

(a) is not a private company;

(b) has a minimum paid-up share capital of five lakh rupees or such higher

paid-up capital, as may be prescribed:

Provided that a company which is a subsidiary of a company, not being a private

company, shall be deemed to be public company for the purposes of this Act even

where such subsidiary company continues to be a private company in its articles ;

(72) “public financial institution” means—

(i) the Life Insurance Corporation of India, established under section 3 of

the Life Insurance Corporation Act, 1956;

(ii) the Infrastructure Development Finance Company Limited, referred to

in clause (vi) of sub-section (1) of section 4A of the Companies Act, 1956 so

repealed under section 465 of this Act;

(iii) specified company referred to in the Unit Trust of India (Transfer of

Undertaking and Repeal) Act, 2002;

(iv) institutions notified by the Central Government under sub-section (2)

of section 4A of the Companies Act, 1956 so repealed under section 465 of this

Act;

(v) such other institution as may be notified by the Central Government in

consultation with the Reserve Bank of India:

Provided that no institution shall be so notified unless—

(A) it has been established or constituted by or under any Central or

State Act; or

(B) not less than fifty-one per cent. of the paid-up share capital is

held or controlled 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;

(73) “recognised stock exchange” means a recognised stock exchange as defined

in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956;

(74) “register of companies” means the register of companies maintained by the

Registrar on paper or in any electronic mode under this Act;

(75) “Registrar” means a Registrar, an Additional Registrar, a Joint Registrar, a

Deputy Registrar or an Assistant Registrar, having the duty of registering companies

and discharging various functions under this Act;

(76) “related party”, with reference to a company, means—

(i) a director or his relative;

(ii) a key managerial personnel or his relative;

(iii) a firm, in which a director, manager or his relative is a partner;

(iv) a private company in which a director or manager is a member or

director;

(v) a public company in which a director or manager is a director or holds

along with his relatives, more than two per cent. of its paid-up share capital;

(vi) any body corporate whose Board of Directors, managing director or

manager is accustomed to act in accordance with the advice, directions or

instructions of a director or manager;

(vii) any person on whose advice, directions or instructions a director or

manager is accustomed to act:

Provided that nothing in sub-clauses (vi) and (vii) shall apply to the advice,

directions or instructions given in a professional capacity;

(viii) any company which is—

(A) a holding, subsidiary or an associate company of such company; or

(B) a subsidiary of a holding company to which it is also a subsidiary;

(ix) such other person as may be prescribed;

(77) ‘‘relative’’, with reference to any person, means any one who is related to

another, if—

(i) they are members of a Hindu Undivided Family;

(ii) they are husband and wife; or

(iii) one person is related to the other in such manner as may be prescribed;

(78) “remuneration” means any money or its equivalent given or passed to any

person for services rendered by him and includes perquisites as defined under the

Income-tax Act, 1961;

(79) “Schedule” means a Schedule annexed to this Act;

(80) “scheduled bank” means the scheduled bank as defined in clause (e) of

section 2 of the Reserve Bank of India Act, 1934;

(81) “securities” means the securities as defined in clause (h) of section 2 of the

Securities Contracts (Regulation) Act, 1956;

(82) “Securities and Exchange Board” means the Securities and Exchange Board

of India established under section 3 of the Securities and Exchange Board of India Act,

1992;

(83) “Serious Fraud Investigation Office” means the office referred to in section 211;

(84) “share” means a share in the share capital of a company and includes stock;

(85) ‘‘small company’’ means a company, other than a public company,—

(i) paid-up share capital of which does not exceed fifty lakh rupees or such

higher amount as may be prescribed which shall not be more than five crore

rupees; or

(ii) turnover of which as per its last profit and loss account does not

exceed two crore rupees or such higher amount as may be prescribed which shall

not be more than twenty crore rupees:

Provided that nothing in this clause shall apply to—

(A) a holding company or a subsidiary company;

(B) a company registered under section 8; or

(C) a company or body corporate governed by any special Act;

(86) “subscribed capital” means such part of the capital which is for the time

being subscribed by the members of a company;

(87) “subsidiary company” or “subsidiary”, in relation to any other company

(that is to say the holding company), means a company in which the holding company—

(i) controls the composition of the Board of Directors; or

(ii) exercises or controls more than one-half of the total share capital

either at its own or together with one or more of its subsidiary companies:

Provided that such class or classes of holding companies as may be prescribed

shall not have layers of subsidiaries beyond such numbers as may be prescribed.

Explanation.—For the purposes of this clause,—

(a) a company shall be deemed to be a subsidiary company of the holding

company even if the control referred to in sub-clause (i) or sub-clause (ii) is of

another subsidiary company of the holding company;

(b) the composition of a company’s Board of Directors shall be deemed to

be controlled by another company if that other company by exercise of some

power exercisable by it at its discretion can appoint or remove all or a majority of

the directors;

(c) the expression “company” includes any body corporate;

(d) “layer” in relation to a holding company means its subsidiary or

subsidiaries;

(88) “sweat equity shares” means such equity shares as are issued by a company

to its directors or employees at a discount or for consideration, other than cash, for

providing their know-how or making available rights in the nature of intellectual property

rights or value additions, by whatever name called;

(89) “total voting power”, in relation to any matter, means the total number of

votes which may be cast in regard to that matter on a poll at a meeting of a company

if all the members thereof or their proxies having a right to vote on that matter are

present at the meeting and cast their votes;

(90) “Tribunal” means the National Company Law Tribunal constituted under

section 408;

(91) “turnover” means the aggregate value of the realisation of amount made

from the sale, supply or distribution of goods or on account of services rendered, or

both, by the company during a financial year;

(92) “unlimited company” means a company not having any limit on the liability

of its members;

(93) “voting right” means the right of a member of a company to vote in any

meeting of the company or by means of postal ballot;

(94) “whole-time director” includes a director in the whole-time employment of

the company;

(95) words and expressions used and not defined in this Act but defined in the

Securities Contracts (Regulation) Act, 1956 or the Securities and Exchange Board of

India Act, 1992 or the Depositories Act, 1996 shall have the meanings respectively

assigned to them in those Acts.