[The
following post is contributed by Aditya Swarup,
who is an advocate practising in the Bombay High Court. He has a B.A., LL.B
(Hons.) degree from NALSAR, Hyderabad and B.C.L. and M.Phil degrees from
Oxford]
following post is contributed by Aditya Swarup,
who is an advocate practising in the Bombay High Court. He has a B.A., LL.B
(Hons.) degree from NALSAR, Hyderabad and B.C.L. and M.Phil degrees from
Oxford]
The
issue of conflicting provisions in a Shareholders Agreement (SHA) and the
articles of association (Articles) of a company is a never ending debate, and
perhaps a rather confounding one in company law. A recent order of the Delhi High
Court in World Phone India Pvt. Ltd v.
WPI Group Inc USA, [2013] 178 Comp Cas 173 (Del) (also available here), holding that clauses in a SHA which are
not repugnant to the Companies Act but not incorporated in the articles of the
Company, would be unenforceable, has only added to this confusion. This post is
an attempt to expound the law surrounding this decision.
issue of conflicting provisions in a Shareholders Agreement (SHA) and the
articles of association (Articles) of a company is a never ending debate, and
perhaps a rather confounding one in company law. A recent order of the Delhi High
Court in World Phone India Pvt. Ltd v.
WPI Group Inc USA, [2013] 178 Comp Cas 173 (Del) (also available here), holding that clauses in a SHA which are
not repugnant to the Companies Act but not incorporated in the articles of the
Company, would be unenforceable, has only added to this confusion. This post is
an attempt to expound the law surrounding this decision.
As
a background, it would be apt to note that conflicts between SHA and the Articles
of a company can be of two types; first, where the conflict relates to the
management of the company (affirmative vote, board of directors, accounts, etc.)
and second, where the conflict relates to the transferability of shares. The
latter has been the subject of extensive case law in the Supreme Court and High
Court and has been dealt with in this blog at various instances (e.g. here and here). As regards the
former, two main questions arise;
a background, it would be apt to note that conflicts between SHA and the Articles
of a company can be of two types; first, where the conflict relates to the
management of the company (affirmative vote, board of directors, accounts, etc.)
and second, where the conflict relates to the transferability of shares. The
latter has been the subject of extensive case law in the Supreme Court and High
Court and has been dealt with in this blog at various instances (e.g. here and here). As regards the
former, two main questions arise;
1) Whether a provision in a SHA that is
contrary to the Articles of the company is valid and enforceable?
contrary to the Articles of the company is valid and enforceable?
2) What are the possible remedies for a
shareholder against breach of a SHA by other shareholders even though such action
would not be construed as a breach under the Articles of the company?
shareholder against breach of a SHA by other shareholders even though such action
would not be construed as a breach under the Articles of the company?
Probably
the most important case in this regard is that of VB Rangaraj v. VB Gopalakrishnan, (1992) 1 SCC 160 (available here). In that case, while dealing with a
conflict between the SHA and the Articles of the company of the latter type,
i.e. a conflict dealing with the transferability of shares, the Supreme Court
took the view that the provisions of a SHA imposing restrictions even when
consistent with the Companies Act, are to be authorised only when they are
incorporated in the Articles of the Company.
The decision of the Supreme Court was based on the seemingly settled
position that where there is a contradiction between the SHA and the Articles
of acompany, the latter will prevail. In IL
& FS Trust Co. Ltd. v. Birla Perucchini Ltd., [2004] 121 Comp Cas 335
(available here), the decision in Rangaraj
was also held applicable to conflicts in the Articles and SHA not involving
transfer of shares.
the most important case in this regard is that of VB Rangaraj v. VB Gopalakrishnan, (1992) 1 SCC 160 (available here). In that case, while dealing with a
conflict between the SHA and the Articles of the company of the latter type,
i.e. a conflict dealing with the transferability of shares, the Supreme Court
took the view that the provisions of a SHA imposing restrictions even when
consistent with the Companies Act, are to be authorised only when they are
incorporated in the Articles of the Company.
The decision of the Supreme Court was based on the seemingly settled
position that where there is a contradiction between the SHA and the Articles
of acompany, the latter will prevail. In IL
& FS Trust Co. Ltd. v. Birla Perucchini Ltd., [2004] 121 Comp Cas 335
(available here), the decision in Rangaraj
was also held applicable to conflicts in the Articles and SHA not involving
transfer of shares.
It
is settled law that the Articles of a company would prevail when there is a contradiction between the SHA and the Articles.
But assuming that there is a certain provision in the SHA that has not been
incorporated in the articles of the Company, would it mean that merely because
the articles are silent (not contradictory), the articles will prevail?
is settled law that the Articles of a company would prevail when there is a contradiction between the SHA and the Articles.
But assuming that there is a certain provision in the SHA that has not been
incorporated in the articles of the Company, would it mean that merely because
the articles are silent (not contradictory), the articles will prevail?
The
answer to this question might lie in recognition of the legal position that a
company is controlled only by its Memorandum and Articles. The Articles are a
form of a statutory contract binding all the members of the company as regards
the affairs of the company. A company cannot contract outside the Articles in
so far as the management of the affairs of the Company is concerned, and any
other agreement attempting to bind the company as regards its affairs, not
provided for in the Articles and Memorandum of the company, may not be
enforceable. For instance, a provision in a SHA giving a casting vote to the
Chairman of the Board in case of a tie, not provided in the Articles, will not
be enforceable. However, this may also depend on whether the company is a party
to the SHA. (See Russell v. Northern Bank
Development Corp Ltd, [1992] 1 WLR 588 )
answer to this question might lie in recognition of the legal position that a
company is controlled only by its Memorandum and Articles. The Articles are a
form of a statutory contract binding all the members of the company as regards
the affairs of the company. A company cannot contract outside the Articles in
so far as the management of the affairs of the Company is concerned, and any
other agreement attempting to bind the company as regards its affairs, not
provided for in the Articles and Memorandum of the company, may not be
enforceable. For instance, a provision in a SHA giving a casting vote to the
Chairman of the Board in case of a tie, not provided in the Articles, will not
be enforceable. However, this may also depend on whether the company is a party
to the SHA. (See Russell v. Northern Bank
Development Corp Ltd, [1992] 1 WLR 588 )
In World
Phone, the Board of Directors of the company passed a resolution approving a
rights issue in accordance with the Articles of the company, even though such
an action required the affirmative vote of the Appellant in accordance with a
SHA entered into between the shareholders of the company. The Company Law Board
had held that since the provisions of the SHA granting an affirmative vote to
the appellant were not incorporated in the Articles of the company, the said
provision is unenforceable and the board resolution approving the rights issue
was valid. On appeal, Justice Muralidhar of the Delhi High court held;
Phone, the Board of Directors of the company passed a resolution approving a
rights issue in accordance with the Articles of the company, even though such
an action required the affirmative vote of the Appellant in accordance with a
SHA entered into between the shareholders of the company. The Company Law Board
had held that since the provisions of the SHA granting an affirmative vote to
the appellant were not incorporated in the Articles of the company, the said
provision is unenforceable and the board resolution approving the rights issue
was valid. On appeal, Justice Muralidhar of the Delhi High court held;
“ the legal position is
that wherethe articles of association are silent on the existence of an
affirmative vote, it will not be possible to hold that a clause in an agreement
between shareholders would be binding without being incorporated in the
articles of association. The question to be asked is whether the provisions of
an agreement, that are not inconsistent with the Act, but are also not part of
the articles of association, can be said to be applicable. All that section 9
states is that the clauses in the agreement that that “repugnant” to the Act
shall be “void”. This does not mean that the clauses in the agreement which
are not repugnant to the Act would be enforceable, notwithstanding that they
are not incorporated in the articles of association.”
that wherethe articles of association are silent on the existence of an
affirmative vote, it will not be possible to hold that a clause in an agreement
between shareholders would be binding without being incorporated in the
articles of association. The question to be asked is whether the provisions of
an agreement, that are not inconsistent with the Act, but are also not part of
the articles of association, can be said to be applicable. All that section 9
states is that the clauses in the agreement that that “repugnant” to the Act
shall be “void”. This does not mean that the clauses in the agreement which
are not repugnant to the Act would be enforceable, notwithstanding that they
are not incorporated in the articles of association.”
Thus,
the court has held that the provisions of the SHA, though silent in the Articles
of the company, and not in contradiction with them, will not be
enforceable. This ruling, as it stands,
brings in a lot of confusion to the issue of conflicts between SHAs and Articles
of a company- because the issues don’t stand resolved merely with the
conflicting provisions being unenforceable. Further issues arise in light of
the judgment of the Supreme Court in Vodafone
International Holdings BV v. Union of India, (2012) 6 SCC 613 (available here), that have not been considered by the
Delhi High Court in World Phone.
the court has held that the provisions of the SHA, though silent in the Articles
of the company, and not in contradiction with them, will not be
enforceable. This ruling, as it stands,
brings in a lot of confusion to the issue of conflicts between SHAs and Articles
of a company- because the issues don’t stand resolved merely with the
conflicting provisions being unenforceable. Further issues arise in light of
the judgment of the Supreme Court in Vodafone
International Holdings BV v. Union of India, (2012) 6 SCC 613 (available here), that have not been considered by the
Delhi High Court in World Phone.
In Vodafone, three main observations were made
by the Supreme Court on the issue;
by the Supreme Court on the issue;
a) That the Supreme Court does not
subscribe to the view in Rangaraj that restrictions in a SHA, though consistent
with company law, are to be authorised only when they are incorporated in the
articles of the Company. (it is still doubtful whether Rangaraj has been
overruled as the Court didn’t explicitly say so)
subscribe to the view in Rangaraj that restrictions in a SHA, though consistent
with company law, are to be authorised only when they are incorporated in the
articles of the Company. (it is still doubtful whether Rangaraj has been
overruled as the Court didn’t explicitly say so)
b) Shareholders can enter into any
arrangement in the best interests of the Company, but the only thing is that the provisions of SHA shall not go
contrary to the articles of the Company.
arrangement in the best interests of the Company, but the only thing is that the provisions of SHA shall not go
contrary to the articles of the Company.
c) Breach ofSHA which does not breach the
Articles of a company is a valid corporate action, but the parties agreed can
get remedies under the general of the land for breach of any agreement and not
under Companies Act.
Articles of a company is a valid corporate action, but the parties agreed can
get remedies under the general of the land for breach of any agreement and not
under Companies Act.
In
light of the above, a logical extension of the judgment in World Phone would be that even though the provisions of an
affirmative vote are not incorporated in the Articles of the company, and
though the action of the company in providing for a rights issue would be valid
under the Companies Act, such an action will still be in breach of the SHA for
which the aggrieved shareholder can pursue an action for breach of contract.
light of the above, a logical extension of the judgment in World Phone would be that even though the provisions of an
affirmative vote are not incorporated in the Articles of the company, and
though the action of the company in providing for a rights issue would be valid
under the Companies Act, such an action will still be in breach of the SHA for
which the aggrieved shareholder can pursue an action for breach of contract.
This
view is also consistent with the position in English law. In Southern Foundries Ltd v. Shirlaw,
[1940] AC 701 it was held, “a company cannot be precluded from altering its articles
thereby giving itself power to act under the provisions of the altered
articles–but so to act may nonetheless be a breach of contract if it is
contrary to a stipulation in the contract validly made before the alteration”,
and the court awarded damages for wrongful dismissal of the managing director
of the Company even though the mode of dismissing was valid under the Articles
of the company. There is considerable
opinion to show that the relief may also lie in terms of an injunction to
restrain it possible breach of the SHA contract.
view is also consistent with the position in English law. In Southern Foundries Ltd v. Shirlaw,
[1940] AC 701 it was held, “a company cannot be precluded from altering its articles
thereby giving itself power to act under the provisions of the altered
articles–but so to act may nonetheless be a breach of contract if it is
contrary to a stipulation in the contract validly made before the alteration”,
and the court awarded damages for wrongful dismissal of the managing director
of the Company even though the mode of dismissing was valid under the Articles
of the company. There is considerable
opinion to show that the relief may also lie in terms of an injunction to
restrain it possible breach of the SHA contract.
On
9th May, 2013, the Supreme Court refused to admit a SLP in the World Phone case stating the opinion
expressed in the order was only as regards interim relief and that the CLB was
to decide the issue uninfluenced by the observations of the High Court. This
sets the stage for a new round of litigation where it is hoped that issues
concerning the conflicts between SHAs and Articles of a company would be
finally settled.
9th May, 2013, the Supreme Court refused to admit a SLP in the World Phone case stating the opinion
expressed in the order was only as regards interim relief and that the CLB was
to decide the issue uninfluenced by the observations of the High Court. This
sets the stage for a new round of litigation where it is hoped that issues
concerning the conflicts between SHAs and Articles of a company would be
finally settled.
– Aditya Swarup