following post is contributed by Nivedita
Shankar, who is a Senior Associate at Vinod Kothari & Co. She can be
reached at email@example.com.
of the guest author and cannot be ascribed to the other contributors of this Blog]
on Fighting Abusive Related Party Transactions in Asia” commented: “Abusive related party transactions have
increasingly become a challenge to the integrity of Asian capital markets”.
In fact, this very report also recommended that the voting system should be
such that majority of the disinterested shareholders should approve the related
party transactions in general meetings. Such a practice is already followed in
Malaysia, Hong Kong and Singapore.
the serious repercussions that it may give rise to have been grossly
overlooked. The point on independent shareholders voting in general meetings
was highlighted by SEBI in its consultative paper under the head “Abusive
RPTs” in point 11.25(d). The main reason for proposing this was to ensure
that the approval of major Related Party Transactions (“RPTs”) is done only by disinterested shareholders. The Companies
Act, 2013 (“Act, 2013”) has incorporated
similar provision under section 188 wherein related parties have to abstain
from voting on any related party resolution in general meeting. Effectively,
this shall mean that only disinterested shareholders shall vote on any
resolution. This section is yet to be enforced.
power to minority
control any abuse by a related party but in companies in India, the majority
control rests with the promoters. Thus, even corporate governance becomes a
tool in the hands of majority solely.
list of recommendations to be included in the annual report of listed
companies, requires disclosure of only such materially
significant related party transactions that are apprehended to have
potential conflict with the interest of the company at large. The discretion
has of course been left to the management, which in effect controls the company
in most cases. Such a loose approach means that majority shall always have an
upper hand in cases of corporate governance also. This seems to have remained
the general rule that has governed corporate India for a long time – that of
the majority ruling the company. The reactive step in corporate governance to
allow only disinterested shareholders to vote has extended the approach to such
a precarious situation.
tactics adopted by majority shareholders, who in turn are related to each other
to divert the funds of the company. Thus, what is rightfully the company’s gets
diverted to other fronts owned by the promoters or major shareholders of the
company. The term came to the forefront with the string of scams in the last
decade. Section 188 of the Act, 2013 prohibits any such related party from voting on any related party transaction.
impression that only the member who is directly related to the resolution being
passed shall abstain from voting in the general meeting. Such a belief defies
the very basis of any related party transaction. Related party concept is pervasive in nature and transcends across
a particular contract. When the very basis is sharing of an economic interest,
it can by no means be concluded that only direct interest in the transaction
shall be prohibited from voting in general meeting.
majority – a “hung” company in the making
whammy by also prescribing special resolution for according approval for a
related party transaction. The very step of allowing only disinterested
shareholders to vote in itself is enough to give rise to serious apprehensions
regarding passing of any RPT and to add to that, special resolution has also been
on the side of the minority. So envisage a scenario of 60% shareholding in the
hands of majority, which in turn are related. If now the company was to enter
into a transaction covered under section 188 of Act, 2013, then the 60%
majority are prohibited from voting in the general meeting, which would mean
that the remaining 40% disinterested shareholders shall only vote. Since,
approvals under section 188 are to be taken by special resolution, then 30%
approval of disinterested shareholders would be required. In this way, any
shareholder holding 10% or more in the company can create complete havoc and
make functioning by companies very difficult. Such errant shareholders can
impede any such RPT from being passed, which by no means can be good news for
companies. Passing of special resolution itself is deterrent to abuse of
majority power. On top of that to also give the power to pass resolutions
completely in the hands of disinterested shareholders can result in a “hung”
company, similar to a hung parliament. If this was to happen, then how at all
will companies function?
thought of by the Government and committees which drafted/made recommendations
to the law.
mentions that where transactions are done at arm’s length price, then nothing
contained in section 188(1) of Act, 2013 shall apply. By the term arm’s length,
explanation to section 188(1) means such a transaction in which there is no
conflict of interest. Such an exemption shall hardly be of any help in case of
transactions with subsidiaries. The very concept of “subsidiary company” is
exercise of majority control by the holding company and any transaction with
subsidiary company by the holding company can never be at arm’s length price.
the holding and subsidiary company difficult in the subsidiary company. The
situation becomes even more difficult in case of wholly owned subsidiary
with secretarial audit
practicing company secretary to certify that the company has complied with all
laws applicable to it. The fact that this is not a well drafted provision has
been debated widely.
consider a scenario of any RPT to have been done at arm’s length price, it may
still be difficult to see such transactions through. The presumption in case of
transactions with subsidiaries is that the same is not at arm’s length price.
Wholly owned subsidiaries mainly thrive on the transactions with their holding
companies. Under such circumstances, transactions at arm’s length price can only
be a distant possibility. Determination of arm’s length price is subjective and
consequently difficult for any auditor to also certify one as such.
disqualification for appointment as a director under section 164 of Act,
– Nivedita Shankar