Section 43 of Companies Act 2013

Section 43 of Companies Act, 2013

Kinds of share capital.

The share capital of a company limited by shares shall be of two kinds, namely:—

a.     equity share capital—

              i.        with voting rights; or

             ii.        with differential rights as to dividend, voting or otherwise in accordance with such rules as may be prescribed; and

b.    preference share capital:

Provided that nothing contained in this Act shall affect the rights of the preference shareholders who are entitled to participate in the proceeds of winding up before the commencement of this Act.

Explanation.—For the purposes of this section,—

              i.        ‘‘equity share capital’’, with reference to any company limited by shares, means all share capital which is not preference share capital;

             ii.        ‘‘preference share capital’’, with reference to any company limited by shares, means that part of the issued share capital of the company which carries or would carry a preferential right with respect to—

a.     payment of dividend, either as a fixed amount or an amount calculated at a fixed rate, which may either be free of or subject to income-tax; and

b.    repayment, in the case of a winding up or repayment of capital, of the amount of the share capital paid-up or deemed to have been paid-up, whether or not, there is a preferential right to the payment of any fixed premium or premium on any fixed scale, specified in the memorandum or articles of the company;

            iii.        capital shall be deemed to be preference capital, notwithstanding that it is entitled to either or both of the following rights, namely:—

a.     that in respect of dividends, in addition to the preferential rights to the amounts specified in sub-clause (a) of clause (ii), it has a right to participate, whether fully or to a limited extent, with capital not entitled to the preferential right aforesaid;

b.    that in respect of capital, in addition to the preferential right to the repayment, on a winding up, of the amounts specified in sub-clause (b) of clause (ii), it has a right to participate, whether fully or to a limited extent, with capital not entitled to that preferential right in any surplus which may remain after the entire capital has been repaid.

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Section 43 of Companies Act, 1956

Consequences of default in complying with conditions constituting a company a private company.

Where the articles of a company include the provisions which, under clause (iii) of sub-section (1) of section 3, are required to be included in the articles of a company in order to constitute it a private company, but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private companies by or under this Act, and this Act shall apply to the company as if it were not a private company:

Provided that the Company Law Board, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and no such terms and conditions as seem to the Company Law Board just and expedient, order that the company be relieved from such consequences as aforesaid.