Moving towards sustainable finance through sustainable bonds

SLBs awe-inspiring issuers and investors !

Payal Agarwal, Executive (payal@vinodkothari.com)

ESG or Environmental, Social and Governance concerns are been on a high focus in recent times. The issues are not only been addressed by the environmentalists, but the corporate world is also becoming more and more attentive towards the ESG concerns and devising various ways and means to collate them with their operational activities. One of the various such treads in this regard is the issuance of ESG focussed bonds, which is gradually becoming a popular trend in the global economy, India being no exception. These bonds give a boost to sustainable finance, helping issuers raise finance and investors ensuring their investments fulfil their sustainability goals.

Legal framework in India

In India, the green bonds[1] are one of the most popular and legally recognised means of raising sustainable finance. SEBI, vide its circular dated May 30, 2017 has issued “Disclosure Requirements for Issuance and Listing of Green Debt Securities” which are in addition to the general requirements under the SEBI (Issue and Listing of Debt Securities) Regulations, 2008.

Amidst the constant push towards business sustainability and responsibility conduct through reporting for listed entities[2], India also recognised the need for such ESG debt securities in the Consultation Paper released on draft International Financial Service Centres Authority (Issuance and Listing of Securities) Regulations. The said consultation paper provides for a framework for issuance and listing of securities, including ESG debt securities in the stock exchanges under the IFSC region in India. Now, the International Financial Service Centres Authority (Issuance and Listing of Securities) Regulations, 2021 (“IFSC Regulations”) provide a framework for listing of “ESG debt securities”.

In this article, we will discuss the internationally recognised means of raising sustainable finance and the present and potential capacities of India in raising such sustainable finance by means of ESG debt securities.

Meaning and types

As the name suggests, ESG bonds or debt securities are debt instruments that are linked to or contribute to the development of ESG concepts in some way or the other.

The International Capital Market Association (ICMA) recognises 4 types of bonds that are interested in sustainable financing –

Further separate guidelines[3] have been issued by ICMA in respect of each of these bonds. A snapshot showing comparative between these 4 types of bonds is as follows –

A study of these guidelines show that the SLBs are quite different from other sources of sustainable finance, being “general corporate funds” instead of “use of proceeds” funds.

Therefore, the same has been discussed separately in later parts of this article.

Further, the categories of projects in which proceeds of green bonds, social bonds, and sustainable bonds can be used have been listed below (the list is illustrative) –

Similar standards have been issued by the Climate Bonds Standard Board that recognises only green bonds, Association of South East Asian Nations (ASEAN) having set different standards for green bonds, social bonds and sustainable bonds. Similar standards have also been issued by the European Union for green bonds and social bonds. It is noteworthy that all these standards are voluntary in nature and aligned with the ICMA Guidelines with some modifications of their own. The IFSC Regulations also recognise all the 4 types of bonds as ESG debt securities, issued as under any of the aforesaid guidelines.

Sustainability-linked bonds (SLBs) – where lies the uniqueness?

As discussed above, internationally there are four types of recognised ESG bonds, which are also proposed to be imbibed in the legal framework in India. While the first three being in the nature of “use-of-proceeds” bonds, the Sustainability-linked bonds or SLBs have distinguishing features. The SLBs rests on five key pillars, as follows –

The SLBs require companies to frame key performance indicators and Sustainability Performance Targets. To give an example, a company may frame its sustainability performance target to reduce its greenhouse gas (GHG) emissions by 20% compared to that of the year 2018 as baseline. In this case, the key performance indicators can be reduction of CO2 emissions, reduction of carbon footprint etc.

Growth of ESG bonds

The Environmental Finance – Sustainable Bonds Insight, 2021 provides

data analytics in respect of the various types of sustainable bonds issued during the year 2020. The data shows high volume of green and social bonds issued during the year as compared to sustainable bonds and SLBs, which are relatively new and evolving concept. While the figures show a comparative between different types of ESG bonds issuance, it also provides an insight on the increasing volume of the ESG bonds being issued in the Covid era (an increase in the bonds issuance in the months of September, October and November).

 

Present position v/s potential growth

The Report shows a comparison of the development of sustainable bond market in the recent years and an estimate of what is expected in the current year 2021. It demonstrates clearly that the sustainable bond market is expected to rise further in the upcoming areas.

Growth of ESG bond market in India in recent times

In India, the ESG bonds issuance is witnessing an evident upshot. However, the same has not found much investors’ interest in the country. Nevertheless, the Indian issuer companies have still been able to raise much funds from the issuance of ESG bonds from global investors. The below chart clearly demonstrates the increase in funds raised by way of issue of ESG bonds[4].

Some of the big Indian issuers of ESG focussed bonds include GreenCo, JSW Hydro Energy, Shriram Transport Finance Company, India Green Power Holdings, ReNew Power, Ultratech Cement Ltd etc.

Sustainability linked bonds or SLBs, as discussed, is relatively new and innovative concept in the podium of ESG bonds in the world. India has made a remarkable entry in this field with Ultratech Cement Limited[5], issuing SLBs, thereby, being the first company in India and second in Asia to issue SLBs. The company has raised a total of 400 million USD equivalent to Rs. 2900 crores by way of issuance of such SLBs. The same has been listed in the Singapore Exchange Securities Trading Limited[6].

ESG Bonds – Motivations for the Issuer and Investor

Issuer’s perspective

  • Cost advantage due to yield reduction – The yield payment in respect of ESG bonds are relatively lower than that of other conventional bonds[7]. A reason for such lower yields is increase in demand with limited supply of such bonds. An example may be the issuance of green bonds by Italian Government[8], which was oversubscribed by 10 times.
  • Role as corporate citizens – The ESG bonds contribute to demonstrating the role of issuers as responsible corporate citizens, spending the proceeds generally on sourcing of renewable energy, pollution reduction, climate change initiatives.
  • Attracts responsible investors – The ESG bonds align with social development goals (SDGs) and principles of responsible investing (PRI) thereby attracting socially responsible investors whose investment decisions are more of impact-oriented than yield-based.
  • Seen as ethical companies – The companies issuing ESG bonds are looked upon as ethical companies by the stakeholders thereby helping in demonstrating a good corporate image.

Some additional advantages motivation lies for issuance of SLBs

  • Flexibility of designing structure – The main feature of SLB is that it gives a flexibility to the issuers to design their issued bonds in their own way.
  • Flexibility with regard to use of proceeds – Another flexibility is with regard to the use of issue proceeds which need not necessarily be towards promoting green projects, social projects or the like. Therefore, the companies are free to use the proceeds for their operational activities without giving a second thought on whether the same qualifies as a green project or social project.
  • Motivation for fulfilment of ESG targets – The SLBs put a “step-up” on the coupon rate of the bonds in case the issuer misses its ESG target. Therefore, it gives an additional economic interest for the issuers to fulfil their ESG targets.

Investor’s perspective

It is said that behind the investors’ growing interest in ESG bonds lies two reasons – (i) values-driven and (ii) value-driven. While the investors, as part of their responsibility towards the society and environment, consider ESG in their investment analysis, that is not the only reason investors are investing in ESG bonds. Another reason that drives the investors in supporting ESG concerns and investing in ESG bonds is the long term perspective and the expectation of deriving great value from their investment portfolio. The investors believe that a company that invests in the ESG concerns and addresses the ESG issues properly, are more likely to earn profits in the long term. Therefore, while the investors are demonstrating their values and responsible behaviour by choosing ESG focussed bonds, they are also booking adequate profits for themselves in the long run.

Now, with the new SLBs coming into picture, the investors are likely to get more benefits out of their investment in the ESG bonds in the form of SLBs. The terms of SLBs are designed as such that the investors get a “step-up” or hike in the coupon rates as and when the issuer misses a pre-defined target (identified as SPTs).

Sustainability-linked bonds (SLBs) – investors always at the winning end

The concept of SLBs comes with a very interesting feature – where investor benefits on the issuer missing its ESG target. Since the investor is making profits on the cost of compromise in ESG responsibilities by issuer, therefore it is controversial that how can an investor show his ESG responsibility at a time when it is making profits on failure to reach ESG targets? However, that is not the case. Another viewpoint towards the case maybe that the investors are motivating their issuers in reaching their ESG targets, and where they fail to do, the investors cast a penalty on the issuer. Whatever the case may be, in both the scenarios, investors are the one who are at the winning side.

A recent interesting case of issue of ESG bonds in the form of SLBs may be discussed here.

A Japanese firm, Nomura Research Institute Ltd, has issued ESG bonds with the “variable bond characteristics” as below –

  1. Where the issuer reaches target – early redemption of debts
  2. Where the issuer misses target – extra yield to investors

In both the cases, the investors will be benefitted. In the first case, the investor will earn return on their investments early, so they will be in possession of their funds again at a shorter span of time. On the contrary, in the second case, though the funds of the investors will be locked for a longer time, the same will bring them higher yield. So, the investors, are very well in a win-win position in all probable cases.

Requirements for listing of ESG debt securities in India

The Ministry of Finance has notified the IFSCA (Issuance and Listing of Securities) Regulations, 2021 or the IFSC Regulations.  It is a unified framework for various kinds of securities and is framed with the main intent of consolidating the regulatory requirements in order to access the global capital with more ease and less complexity. The concept of ESG bonds have been specifically recognized and captured under Chapter X of the said Regulations. However, it has to be noted that these IFSC regulations are applicable only for the IFSC-listed companies. No specific framework is provided for ESG bonds for other domestic companies in India outside the scope of IFSC Regulations. The same can still be taken as a guidance for other domestic issuances.

While the requirements for issuance and listing of ESG bonds are given in Chapter X, the same is in addition to those under Chapter IX of the Regulations. Please note that, Chapter IX lays down the requirements for issuance and listing of debt securities. By “debt securities” is meant the non-convertible debt securities, as is clear from the definition of “debt securities” under Regulation 2(e) of the Regulations.

The additional requirements for the ESG bonds are as follows –

  • An independent external review is required to be obtained in order to satisfy that the issue of ESG bonds are in line with internationally recognised standards set for ESG bonds, the principles of ICMA being one of them.
    • Review may be in the form of verification, certification, second party opinion, or scoring/rating.
  • The most important requirement under ESG investing is disclosure and reporting The same is being discussed here under a separate head.
  • Impact report is important in order to measure the actual impact of the projects in which the ESG funds have been spent.

Disclosure and reporting

As also envisaged by the Sustainability-linked bond principles of ICMA, disclosure is a main pillar of ESG investing. The IFSCA Regulations also focusses on the disclosure requirements.

Under the IFSCA Regulations, the following disclosures are required to be made –

  • The objectives of the issue of debt securities
  • The process followed for selection and evaluation of projects
  • The system employed for tracking deployment of issue proceeds
  • Intended vs actual utilisation of issue proceeds
  • Specific projects to which the issue proceeds have been disbursed/ allocated.

Further, in case of SLBs, the reporting guidance as under the ICMA Guidelines shall apply.

Applicability to other listed entities not covered under IFSC Regulations

The IFSC Regulations are not applicable to companies other than those listed under the jurisdiction of IFSC Authority. However, the IFSC Regulations are in alignment with other internationally-recognised principles in this regard. We have taken examples of some Indian companies like JSW Steel, Ultratech Cement, Adani Energy, Shriram Transport Finance Co. Ltd, Ultratech Cement etc which provides disclosures and follow the requirements of external review in line with the ICMA Guidelines and IFSC Regulations, which re-iterate requirements of ICMA and other internationally recognised guidelines.

Conclusion

As the world has approached the twentieth century, a shift has become apparent towards more grounded aspects of life – rather than just profit earning. Earlier, it was believed that the corporate world has only one motive – the profit earning motive. However, the focus has now been modified to include various other aspects as well. With instruments like ESG bonds, the efforts are being made to include sustainability in the economy, so that both can progress side-by-side. As the statistics above suggest, India is nowhere lagging behind in the ESG investing. This may be seen as one of the probable cause that IFSCA has included ESG bonds as a specified security in its Listing Regulations.  The IFSCA Regulations do not introduce the ESG bonds in India for the first time, rather it just seeks to regulate issuance of the same by means of express regulations in this regard.

[1] Our article on the same can be read here

[2] Read our articles on the same here

[3] Green Bond Principles

Social Bond Principles

Sustainability Bond Guidelines

Sustainability-linked Bond Principles

[4] https://www.refinitiv.com/

[5] See Page 4 of the Annual Report here

[6] Listing confirmation can be accessed here

[7] Asian Development Outlook – 2021

[8] Read this here

Our other related resources –

  1. https://vinodkothari.com/2014/03/prospects-green-bonds-rise/
  2. https://vinodkothari.com/2017/05/guidelines-for-issuance-of-green-bonds/
  3. https://vinodkothari.com/wp-content/uploads/2017/03/India_plans_to_tap_Green_Bonds-1.pdf
  4. http://vinodkothari.com/2020/08/cartload-of-details-in-brsr-a-challenge-ahead-for-elaborate-reporting/
  5. http://vinodkothari.com/2020/08/brr-in-process-to-become-a-fully-loaded-electronic-form/
  6. http://vinodkothari.com/2021/03/esg-concerns-on-corporate-governance-in-india/
  7. https://vinodkothari.com/2021/07/corporate-responsibility-towards-climate-change-uk-leads-regulatory-measures/

VKCPL Profile

Case Study I – Related Party Transactions – [Case 1]

In our series of case studies on corporate laws, we present to you our first case study on Related Party Transactions. Readers and viewers are invited to share their views and solutions in the comment section below –

Case Study 1- Related Party Transactions

Retrospective Operation of S. 29A & OTS under IBC – Analysing Prospects

– Megha Mittal

[resolution@vinodkothari.com]

The Hon’ble NCLAT vide its order Martin SK Golla v. Wig Associates, 2019[1] has set aside the order of the Adjudicating Authority which had accepted a one-time settlement-cum-resolution plan submitted by a connected person of Corporate Debtor, who later on, after the implementation of section 29A became ineligible to submit a plan. Hence, the question before the Hon’ble Tribunal was whether sec 29A of IBC will be applicable with retrospective effect in section 10 proceedings which were initiated prior to sec 29A came into force?

The Hon’ble NCLAT held that the reason that once CIRP is commenced, provisions as existing on the day of the petition would continue to apply even in the face of amendment brought about by way of 29A- cannot be maintained, and as such the one time settlement-cum-resolution plan, offered by the connected person of the Corporate Debtor cannot be considered good under law.

In this article, along with the issue of retrospective applicability of section 29A and its likely impact on the stakeholders, the Author also delves into the question whether a one-time settlement scheme could tantamount to a resolution plan under the Code.

Read more

SUPREME COURT RULING IN THE TATA-MISTRY CASE

-A LIMPID VIEW ON MINORITY PROTECTION RIGHTS UNDER INDIAN CORPORATE LAW

Sharon Pinto, Manager, corplaw@vinodkothari.com

Background

The Ruling of the Supreme Court (SC) in this case has shed light on several important aspects related to majority versus the minority rule, oppression and mismanagement, role of Non-Executive Directors (NEDs), scope and powers of the Tribunal in providing relief to any matter under section 242 of the Companies Act, 2013.

This article critically discusses on the various aspects of principles of law emanating from the instant ruling.

Understanding the law relating to oppression and mismanagement under the present statute

Section 241 of the Companies Act, 2013 (‘Act, 2013’/ ‘Act’) provides that any member of a company who complains that:

(a) the affairs of the company have been or are being conducted in a manner prejudicial to public interest or oppressive to him or any other member or members or to the interests of the company; or

(b) the material change, not being a change brought about by, or in the interests of any class of shareholders of the company, has taken place in the management or control of the company, whether by an alteration in the Board of Directors, or manager, or in the ownership of the company’s shares, and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to its interests or its members or any class of members, may apply to the Tribunal, provided such member has a right to apply under Section 244 of the Act.

Further, the Act under Section 244 specifies not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one tenth of the issued share capital of the company,

may make an application on the aforesaid grounds unless the said requirement is waived by the Tribunal on an application made by the applicant.

The Tribunal is empowered under the provision of Section 242 of the Act to make such order as it deems fit, on receipt of such an application, if it is of the opinion that:

a) the company’s affairs have been or are being conducted in a manner prejudicial or oppressive to any member or members or prejudicial to public interest or in a manner prejudicial to the interests of the company; and

(b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up.

Points of law settled the Ruling

a.    Grounds for oppression and mismanagement

By delving into the legislative history of oppression and mismanagement, the SC stated that prejudice to public interest and prejudice to the interests of any member or members were not among the parameters prescribed in the 1913 Act, but under the 1956 Act, prejudice to public interest was included both under the provision relating to oppression and also under the provision relating to mismanagement. Prejudice to the interest of the company was included only in the provision relating to mismanagement. Later, the Act, saw the clubbing of oppression and mismanagement under the same provision and general grounds prescribed are conduct –

  1. prejudicial to any member or members or
  2. prejudicial to public interest or
  3. prejudicial to the interest of the company or
  4. oppressive to any member or members.

The Honorable Court also noted the shift between the conduct of company’s affairs in a prejudicial manner as mentioned above to have been ‘present and continuing’ under the 1913 Act and 1956 Act, whereas, ‘past, present and a continuous’ conduct of affairs of the company can be considered under the present form of statute, although acts of distant past are not to be considered.

As per the provisions stated under the current statute, existence of a dual criteria for invoking oppression and mismanagement is a pre-requisite. Along with the prejudicial conduct of company’s affairs as stated above, the circumstances should be such that they form just and equitable grounds for the winding up of the company, although such winding up may cause unfair prejudice against the members. Thus, the onus of proof for establishing the aforementioned dual criteria rests on the members proposing a case of oppression and mismanagement. If the Tribunal is of the opinion that acts of the company have given rise to such a situation that requires giving such relief as mentioned under section 241 for disposing the matter without winding up of the company.

b.  Scope of powers of the Tribunal

This ruling has shed significant light on the scope of the powers of the Tribunal prescribed under the Act. The Apex Court stated that the rights of the appellate tribunal are curtailed to the matters put forth before the NCLT at the time of the original petition. Therefore, no fresh matters can be decided by the NCLAT as it is not the original court of dispute. Further, NCLT is the final court of fact. Thus, the facts of the case taken up, confirmed or set aside by the NCLT cannot be questioned at the NCLAT, unless the same pertains to the question of law or have been specifically appealed against.

Sub-section (1) of section 242 of the Act states “the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit”. Thus, Section 242 confers the Tribunal with the power to make an order directing several actions. However it has been established under this ruling that such powers of the Tribunal are bound by the reliefs enlisted under the provisions and it may make any supplementary orders which are necessary for putting an end to the matters complained of and giving effect to the order made under the provision. Therefore it is beyond the scope of the Tribunal, under the garb of this provision, to make orders which are specifically barred by law under any other Act in force, for instance reinstatement of a director. It is also established that a contract of personal services cannot be enforced by the Tribunal and at the most it stands as an employment dispute. Further, it is beyond the powers of the Tribunal to set aside an article, unless an amendment of such article has amounted to prejudice or oppressive conduct against the members or the company, as the members of the company enter the company having read and agreed the terms of contract and cannot later question the same.

c.   Removal of director as ground for oppression

Failed business decisions and the removal of a person from directorship cannot be projected as acts oppressive or prejudicial to the interests of the minorities. Even in cases where the Tribunal finds that the removal of a Director was not in accordance with law or was not justified on facts, the Tribunal cannot grant a relief under Section 242 unless the removal was oppressive or prejudicial. Thus it has to be established that such a removal has amounted to oppression and unfair prejudice to the interests of the minority shareholders or the company, irrespective of the legality of the removal.

Further, mere acts of removal of an executive chairperson or a director from the company cannot be considered to trigger the basis for just and equitable grounds for winding up of the company. The SC referred to the case of Hanuman Prasad Bagri & Ors. vs. Bagress Cereals Pvt; (2001) 4 SCC 420. Ltd. The removal of director which has not been made in accordance with law or is not justified by the facts and made with the intent to oppress or prejudice the interests of some members may provide for relief under section 242 of the Act.

The Apex Court further stated that in the given case, since the position of Executive Chairman is not recognized by law, the removal was not required to be executed at a general meeting. While the SC took this view, however, the attention of the SC was not drawn to the fact that whether a person is designated as such or not, on being an executive chairperson, it is a general practice to designate one of the directors as an executive chairperson as per the Articles of the company and therefore, attract compliance under Section 196 and Section 169 of the Act.

d.   Tabled items at the meeting of the board

The law provides for certain items not expressly stated in the agenda, which is circulated prior to the board meeting to be taken up at the meeting itself with the consent of majority of the directors. Citing the judgment in the case of M.I. Builders Pvt. Limited vs. Radhey Shyam Sahu & Others, the stance of the SC remained unclear on whether any important items which necessitate deliberations and consultation of the directors can be tabled at the meeting as per the provision, it is an important question to ponder upon. The requirement of sending an adequate notice with the items to be discussed is an important requirement, so as to enable the directors to consider and plan their schedule as well as action to attend and participate in the meeting. Thus it may be detrimental to the company if an important agenda item is tabled at the meeting with no prior intimation given to the directors.

e.   Scope of a just and equitable cause in the context of a quasi-partnership principles

In order to invoke an order under the provision for oppression and mismanagement there is a necessity of just and equitable grounds amounting to winding up of the company. The SC established by various judgments that such grounds can be said to exist when there is a justifiable lack of confidence in the conduct and management of the company’s affairs. The concept of just and equitable grounds flows from the Law of Partnership and has its roots in probity, good faith and mutual confidence. However for imposing that the organization is in fact in the form of a quasi-partnership, the same has to be properly established in the pleadings. A company however small or domestic cannot per se, be considered a quasi-partnership and shall remain to be a company, the members of which have subscribed to the articles and agreed to conduct business together.

A better understanding of the grounds that would make a just and equitable cause for winding up of the company can be drawn from the case decided by the House of Lords in the matter of  Lau V. Chu, where it was established that a situation of a functional deadlock where the members have lost faith in the ability of the management to conduct affairs of the company, leading to frustration in the shareholders in a manner that the company cannot operate tantamount to such a just and equitable cause, irrespective of whether the structure of the company is that of a quasi-partnership or not. On the other hand, in cases where a breakdown of faith between members is proposed as a ground purporting winding up, without the existence of a management deadlock, it is necessary to establish that there exists a quasi-partnership which is based on mutual faith among the partner as suggested earlier.

f.   Validity of expulsion clause under the Articles

A person who willingly becomes a shareholder and thereby subscribes to the Articles of Association (AoA) and who was a willing and consenting party to the amendments carried out to those Articles, cannot later on challenge those Articles. The same would tantamount to requesting the Court to rewrite a contract to which he became a party with eyes wide open. Since the SC has not held the power of the company to pass a special resolution for enforcing transfer of shares of a member (expulsion clause) under the AoA to be illegal, there should not be any question on considering it to be illegal. It has been established that unless such clause has been inserted as an amendment in a manner prejudicial to the rights of certain members of the company, the same cannot be contested against. It should also be noted that it is beyond the powers of the Tribunal to restrict or set aside any articles of the company.

g.   Affirmative rights of section of investors – does it conflict with the board derogative to manage the company

It was held that, affirmative voting rights for the nominees of institutions which hold majority of shares in companies have always been accepted and recognized globally. Therefore, an article empowering nominated directors with such rights was not ruled out by the court.  This view was based on the fact that if an institution happens to be a shareholder, and a notice of a meeting either of the Board or of the General body is issued, pre-consultation is justified for the institution to have an idea about the stand to be taken by them in the forthcoming meeting. However, the same poses serious questions on the independence of the directors and disposal of independent judgement as is required under the provision of Section 166 of the Act. The view of the court in this matter is such that not all directors are required to be independent, as they may represent the interest of their nominators. Nevertheless, it is to be understood that such nominated directors have dual fiduciary duty towards the institution as well as towards the company and the same has to be balanced. Further in case of a clash between the two, the statute can be interpreted such that the company’s interest shall override the interest of the investor institute as enshrined under the duties of a director.

Our other related write-ups dealing with accustomed to act are as follows:

It is the duty of every director irrespective whether they are appointed as Independent Directors under Section 149 of the Act or as appointees of certain shareholders or institutions as per the provisions of Section 152, to uphold the interest of the company and all the stakeholders at large. The position of nominee directors of the company was established by referring the judgments given in Re: Neath Rugby Limited and Central Bank of Ecuador and others vs. Conticorp SA and others (Bahamas),  However, as discussed before, it cannot be denied that the nominee directors have dual fiduciary duties – one of which is the shareholder which nominated them and the other, is the company on whose Board they are nominated. While balancing the two, they have to ascertain that the interests of the company at large are safe-guarded and thus the company’s interest would triumph over the interest of the nominator institute. The nominee directors are therefore required to ensure both public and private interest while disposing their functions as directors. However, carrying this dual responsibility, they cannot be considered devoid of having an independent opinion as the same would contradict the basic duties of a director irrespective of the manner of appointment of such a director and may result in a detrimental situation for the company.

Conclusion

The ruling has clarified various important questions of law as discussed above, although there exist certain areas not touched upon by the court which would require further interpretation and rulings. While the burden of proof lies on the members claiming a relief under the provisions of the oppression and mismanagement, the Tribunal is required to exercise utmost care as to fulfillment of the requirement as intended behind the provisions. The essence of the provision is the existence of malafide actions of the management and conduct of affairs of the company in an unfair and prejudicial manner, which when evidenced can be sought relief against without winding up the company. Further, directors and management of the company have the primary responsibility of protecting the rights of the company, while balancing between profit and probity and the same cannot be compromised.

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The Companies (Accounts) Amendment Rules,2021


The Companies (Audit and Auditors) Amendment Rules, 2021

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Our video on the topic by Mr. Vinod Kothari can be viewed here

Our video on the topic by Mrs. Sikha Bansal can be viewed here


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