The Companies Act, 1994
Act No. 18 of 1994
(Published by Notification No. SRO 177-law dated 1-10-95. of Ministry of Commerce)
(See section 404)
An Actto consolidate and amend the law relating to companies and certain other associations.
WHEREAS it is expedient to consolidate and amend the law relating to companies and certain other Associations;
It is hereby enacted as follows:
1. Short title and commencement
(1) This Act may be called the Companies Act, 1994.
(2) It shall come into force on such rate as the Government may, by notification in the Official, Gazette, appoint.
(1) In this Act, unless there is anything repugnant in the subject or context,-
(a) “articles” means the articles of association of a company including, so far as they apply to the company, the regulations contained in Schedule I to this Act. :
Provided that the article of association of a company framed under any law relating to companies at any time in force before the commencement of this Act shall, so far as they are not inconsistent with the provisions of this Act, be deemed to be the articles of association of that company framed in accordance with the provisions of the Act:
(b) “banking company” means a bank company as defined in section 5(9) of the Act, 1991 (Act No. 14 of 1991).
(c) “company” means a company formed and registered under this Act or an existing company;
(d) “The Court” means the Court having jurisdiction under this Act;
(e) “debenture” includes debenture stock, bonds and any other securities of a company, whether constituting a charge on the assets of company or not;
(f) “director” includes any person occupying the position of director by whatever name called;
(g) “District Court” means the principle Civil Court of original jurisdiction in a district, but does not include the High Court Division, in the exercise of its ordinary civil jurisdiction;
(h) “existing company” means a company formed and registered under any law relating to companies in force at any time before the commencement of this Act, and is in operation after commencement of this Act,
(i) “financial year” means, in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate laid before it in annual general meeting is made up, whether that period is a year or not;
Provided that in relation to an insurance company, “financial year” shall mean the calendar year;
(j) “insurance company” means a company that carries on the business of insurance either solely or in common. with any other business or businesses;
(k) “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 and business of a company , and includes a director or any other person occupying the position of a manager, by whatever name called, and whether under a contract of service or not;
(l) “managing agent’ means a person, firm or company by whatever name called, who or which is entitled to the management of the whole affairs and business of a company by virtue of an agreement with the company, and under the control and direction of the directors except to the extent, if any, otherwise provided for in the agreement;
(m) “managing director” means a director who, by virtue of an agreement with the company or of a resolution passed by the company in its general meeting or by its directors or by virtue of its memorandum or articles of association, is entrusted with the substantial powers of management which would not otherwise be exercisable by him and includes a director occupying the position of a managing director by whatever name called;
Provided that the powers to do administrative acts of a routine nature when so authorised by the directors such as the power to affix 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 endorsed negotiable instrument or to sign any certificate of share or to direct registration of transfer of any shares shall not be deemed to be included within the substantial powers of management:
Provided further that a managing director of a company shall exercise his powers subject to the superintendent control and direction of the directors.
(n) “memorandum” means the memorandum of association of a company as originally framed or as altered in pursuance of the provisions of this Act;
(o) “officer” means a director, managing agent, manager secretary or any other officer of a company and also includes–
(i) where the managing agent is a firm any partner in the firm;
(ii) where the managing agent is a body corporate, any director or manager of the body corporate;
(iii) where the secretary is a body corporate;
Provided that. except for the purpose of sections 331, 332, and 333, the form “officer” shall not include an auditor.;
(p) “prescribed” means as respects the provisions of this Act relating to the winding up of companies, prescribed by rules made by the Supreme Court and, as respect the other provisions of this Act, prescribed by the Government;
(q) “private company” means a company which by its articles–
(i) restricts the right to transfer its shares, if any;
(ii) prohibits any invitation to the public to subscribe for its shares or debenture, if any;
(iii) limits the number of its members to fifty not including persons who are in its employment;
Provided that where two or more persons hold one or more shares in a company jointly, the shall, for the purposes of this definitation be treated as a single member;
(r) “public company” means a company incorporated under this Act or under any law at any time in force before the commencement of this Act and which is not a private company;
(s) “Registrar” means a Registrar or any other officer, by whatever designation, performing under this Act the duty of registration of companies;
(f) “Schedule” means a schedule to this act;
(u) “secretary” means any individual possessing the prescribed qualifications appointed to perform the duties which may be performed by a secretary under this Act and any other ministerial or administrative duties, and
(v) “share” means a share in the capital of the company, and includes stock except when a distinction between stock and shares is expressed or implied.
(2) For the purposes of this Act, a company shall subject to the provisions sub-section (4), be deemed to be a subsidiary of another, if–
(a) that other contrats the composition of Board of Directors of the first mentioned company.
(b) the first mentioned company, being an existing company, has before the commencement of this Act, issued preference shares the holders of which have the same voting right in all respects as the holders of equity shares and that other company exercises or controls more than half of the total voting power of the first mentioned company; or
(c) the first mentioned company is not a subsidiary within the meaning of clause (b), but that other company holds more than half in nominal value of its equity share_capital; or
(d) the first mentioned company is a subsidiary of a third company with is that other’s subsidiary.
(3) For the purposes of sub-section (2), the composition of a company’s Board of Directors shall be deemed to be controlled by another company if, that other company, by the exercise of some power exercisable by it at its discretion without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directors, and for the purposes of this sub-section that other company shall be deemed to have power to appoint to a directorship with respect to which any of the following conditions is satisfied, that is to say–
(a) that power of appointment cannot be exercised except in favour of an individual,
(b)) that an individuals appointment thereto follows necessarily from his appointment as director, managing agent, secretary or manager of or to any other office of employment in, that other company; or
(c) that the directorship is held by an individual nominated by that other company or a subsidiary thereof.
(4) In determining whether one company is a subsidiary of another the following conditions shall be applicable namely:–
(a) any shares held or power exercisable by that other company in a fiduciary capacity shall be treated as not held or exercisable by it.
(b) subject to the provisions of clauses (c) and (d) any shares held or power exercisable shall be deemed to be the shares held or power exercisable by that other company, if–
(i) the shares are held or the power is excercisable by a person as a nominee and on behalf of that other company, but this clause shall not apply to the holding of such shares or to the exercise of such powers by such person where that other company is concerned in a fiduciary capacity.
(ii) the shares are held or the power is exercisable by a subsidiary of that other company or by a nominee of such subsidiary, but this clause shall not apply to the holding of such shares or to the exercise of such powers by the subsidiary or by its nominee where the subsidiary is concerned in a fiduciary capacity;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned company or of a trust deed for securing any issue of such debentures shall disregarded;
(d) if any shares are held or power is exercisable, not being held of exercisable as mentioned in clause (c),–
(i) by that other company or by its subsidiary or by a nominee of that other or its subsidiary as the case may be, and
(ii) the ordinary business of that other company or as the case may be of its subsidiary includes the lending of money and such shares are held or the power is exercisable by way of security of the loan [then such power shall not be treated as being held or exercisable by such company or its nominee.]
(5) For the purposes of this Act’ a company shall be deemed to be the holding company of another if, and only if, that other is its subsidiary.
3. Jurisdiction of the Court.
(1) The Court having jurisdiction under this Act shall be High Court Division;
Provided that the Government may be notification in the Official Gazette and subject to such restrictions and conditions as it thinks fit, empower any District Court to exercise all or any of the jurisdiction by this Act conferred upon the Court, and in that case such District Court shall as regards the jurisdiction so conferred, be the Court in respect of all companies having their registered office in the district.
Explanation.—For the purposes to wind up companies the expression “registered office” means the place where the registered office of the company, during the six months immediately preceding the presentation of the petition of winding up was situated.
(2) Nothing in this section shall invalidate a proceeding by reason of its being taken in a wrong Court
CONSTITUTION AND INCORPORATION
4. Prohibition of partnership exceeding certain number:
(1) Nor company, association or partnership consisting of more than ten persons shall be formed or a the purpose of carrying on the business of banking unless it is registered as a company under this Act or is formed by or under any other Act of Parliament.
(2) No company association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any other business that has for its objects the acquisition of gain by the company, association or partnership, or by the individual members thereof unless it is registered as a company under this Act or is formed by or under any other Act of Parliament.
(3) This section shall not apply to joint family carrying on joint family business or trade.
Provided that for the purposes of this section, in computing the number of persons of a partnership, association or company comprising two or more joint families, minor members of such families shall be excluded.
(4) Every member of a company, association or partnership carrying on business in contravention of this section shall be personally liable for all liabilities incurred in such business.
(5) Any person who is a member of a company, association or partnership formed in contravention of this section shall be punishable with fine not exceeding five thousand taka.
Memorandum of Association
5. Mode of forming incorporated company.
Any seven or more persons or, where the company to be formed will be a private company, any two or more persons associated for any lawful purpose may, be subscribing their names to a memorandum of association and otherwise with the requirements of this Act in respect or registration form an incorporated company, with or without limited liability, that is to say, either–
(a) a company limited by shares, that is to say, a company having the liability of its member limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them; or
(b) a company limited by guarantee, that is to say, a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the assets of the company on the event of its being wound up; or
(c) an unlimited company, that is to say, a company having no limit on the liability of its members.
6. Memorandum of company limited by sharees.
In the case of a company limited by shares.-
(a) the memorandum shall state.–
(i) the name of the company, with “limited” as the last word in its name;
(ii) The address of the registered office;
(iii) the objects of the company, and, except in the case of trading companies, the territories to which they extend;
(iv) that the liability of the members is limited;
(v) the amount of share capital with which the company proposes to be registered, and the divisions thereof into shares of a fixed amount;
(b) each subscriber of the memorandum shall take at least one share;
(c) each subscriber shall write opposite to his name the number of shares he takes.
7. Memorandum of company limited by guarantee.
In the case of a company limited by guarantee–
(a) the memorandum shall state–
(i) the name of the company, with “limited” as the last word in its name.
(ii) the address of the registered office;
(iii) the objects of the company, and, except in the case of trading companies, the territories to which they extend;
(iv) that the liability of the members is limited;
(v) that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member or within one year afterwards, for payment of the debts and liabilities of the company contracted before he ceases to be a member, ad of the charges and expenses of winding up, and for adjustment of the right of the contributories among themselves, such amount as may be required, not exceeding a specified amount;
(b) if the company has a share capital–
(i) the memorandum shall also state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount;
(ii) each subscriber of the memorandum shall take at least one share;
(iii) each subscriber shall write opposite to his name the number of shares he takes.
8. Memorandum of unlimited company.
In the case of an unlimited company
(a) the memorandum shall state-
(i) the name of the company;
(ii) the address of the registered office of the company;
(iii) the objects of the company and, except in the case of trading companies, the territories to which they extend.
(b) if the company has a share capital-
(i) each subscriber of the memorandum shall take at least one share;
(ii) each subscriber shall write opposite to his name the number of shares he takes.
9. Printing and signature of memorandum.
The memorandum of every company shall–
(a) be printed;
(b) be divided into paragraphs numbered consecutively; and
(c) be signed by each subscriber, who shall add his address and description in the presence of at least two witnesses who shall attest the signature.
10. Restriction on alteration of memorandum.
(1) A company shall not alter the conditions on continued in its memorandum except provisions is made in the Act.
(2) Only those provisions which by any other specific provision contained in this Act, are required to be stated in the memorandum of the company concerned shall be deemed to be the conditions contained in its memorandum.
(3) Other provisions contained in the memorandum, including those relating to the appointment of director, managing agent or manager may be altered in the same manner as the articles of the company, but if there is any express provision in this Act permitting the alteration of such provisions in any other manner, they may also be altered in such other manner.
(4) All reference to the articles of a company in this Act shall be construed as including references to the other provisions contained in its memorandum as referred to in sub-section (3).
11. Name of company and change of name.
(1) A company shall not be registered by a name identical with that by which a company in existence is already registered, or so nearly resembling the name that there is likelihood of using the name to deceive, except where the company in existence is in the course of being dissolved and signifies its written consent in such manner as the Registrar requires.
(2) If a company, through inadvertence or otherwise, is, without the consent referred to in sub-section (1), registered by a name identical with that by which a company in existence is previously is registered, or so nearly resembling the name that there is likelihood of using the name to deceive, the first mentioned company shall, on he direction of the Registrar, change its name within a period of one hundred and twenty days.
(3) If a company makes a default in complying with the direction made under sub-section (2), the company shall be punishable with fine of five hundred take for every day during which the default continues and every officer who is in default shall be punishable with fine of one hundred taka for every day during which the default continues.
(4) Except with the previous consent in writing of the Government, no company shall be registered by a name which is declared by the Government by notification in the official Gazette, as undesirable:
Provided that nothing in this sub-section shall apply to companies registered before the commencement of this Act.
(5) No company shall be registered by a name containing in any form the name or any abbreviation of the name of the United Nations or of any subsidiary body set up by the United Nations or of the World Health Organisation unless the company has obtained the previous authorisation in writing of the Secretary General in the case of the United Nations or the subsidiary body as aforesaid or of the Director General of the World Health Organisation in the case of that Organisation.
(6) Any company may, by special resolution and subject to the approval of the Registrar signified in writing, change it name.
(7) Were a company changes its name, the Registrar shall enter the new name on the register in place of the former name, and shall issued a certificate of incorporation in its new name to meet the circumstances of the case and on the issue of such a certificate, the change of name shall be complete.
(8) The change of name shall not change any rights or obligations of the company, or render defective any legal proceedings by or against the company; and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.
(9) A company may, on payment of such fee as may be prescribed, apply to the Registrar for information whether any company is registered or proposed to be registered by a name specified in the application and the Registrar shall furnish the required information within a period of thirty days from the date of receipt of the application.
12. Alternation of memorandum.
(1) Subject to the provisions of this Act, a company may, by special resolution, alter the provisions of its memorandum with respect to the objects of the company, so far as may be required to enable it–
(a) to carry on its business more economically or more efficiently; or
(b) to attain its main purpose by new or improved means; or
(c) to enlarge or change the local area of its operations; or
(d) to carry on some business which, under the existing circumstances. may conveniently or advantageously be combined with the business of the company; or
(e) to restrict or abandon any of the objects specified in the memorandum; or
(f) to sell or dispose of the whole or any part of the undertaking of the company; or
(g) to amalgamate with any other company or body of persons.
(2) The alteration shall not take effect until and except in so far it is confirmed by the Court on petition.
(3) Before confirming the alteration, the Court must be satisfied–
(a) that sufficient notice has been given to every holder of debentures of the company, and to any person or class of person whose interest will, in the option of the Court, be affected by the alteration; and
(b) that, with respect to every creditor who in the opinion of the Court is entitled to object, and who signifies his objections in manner directed by the Court, either his consent to the alteration has been obtained or his debt or claim has been discharged or has been determined, or has been secured to the satisfaction of the Court;
Provided that the Court may, in the cases of any person or class, for special reasons, dispense with the notice required by this section.
13. Power of Court when confirming alteration.
The Court may make an order confirming the alteration either wholly or in part, and on such terms and conditions as it thinks fit, and may make such order as to costs as it thinks proper.
14. Exercises of discretion by Court.
The Court shall, in exercising its discretion under sections 12 and 13, have regard to the class of them, as well as to the rights and interests of the creditors, and may if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase of the interests of dissenting members; and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement;
Provided that no part of the share capital of the company may be expended in any such purchase.
15. Procedure on confirmation of the alternation.
A certified copy of the order confirming the alternation, together with a printed copy of the memorandum as altered, shall be filed by the company with the Registrar within ninety days from the date of the order or within such time as may be extended by the court, and he Registrar shall register the same. and shall certify the registration under his hand, and the certificate shall be conclusive evidence that all the requirements of this Act, with respect to the alteration and the confirmation thereof, have been complied with, and hence forth the memorandum so altered shall be the memorandum of the company.
16. Effect of failure to register within extended time.–No such alteration shall have any operation until registration thereof has been duly effected in accordance with the provisions of section 15, and if such registration is not effected within the period specified in that section such alteration and the order of the Court confirming the alteration, and all proceedings connected there with shall, at the expiration of the period specified under that section become absolutely null and void :
Provided that the Court may, on sufficient cause shown, revive the order on application made within a further period of thirty days after the said period.
Articles of Association,
17. Registration of articles.
(1) A company limited by guarantee and an unlimited company shall, and a company limited by shares may. have an articles of association herein provision shall be made for regulating the affairs of the company; and the article shall be signed by the subscribers of the memorandum and be registered together with the memorandum.
(2) Articles of association may adopt all or any of the regulations contained in Schedule I, and shall in any event be deemed to contain regulations identical with or to the same effect as regulation 56, 66, 71, 78, 79, 80, 81, 82, 95, 97, 105, 108, 112, 113, 114, 115, and 116 contained in that Schedule :
Provided that regulations 78, 79, 82, 81, and 82 shall not be deemed to be included in the articles of any private company except a private company which is the subsidiary company of a public company :
Provided further that regulation, 108 shall be deemed to require that a statement of the reasons why of the whole amount of any item of expenditure which may in fairness be distributed over several years, only a portion thereof is charged against the income of the year, shall be shown in the profit and, loss account, unless the company in general meeting shall determine otherwise.
(3) In the case of an unlimited company or a company limited by guarantee, the articles, if the company has a share capital, shall state the amount of share capital with which the company proposes to be registered.
(4) In the case of an unlimited company or a company limited by guarantee, if the company has not a share capital, the articles shall state the number of members with which the company proposes to the registered; and on the basis of such number the Registrar shall determine the fees payable on registration.
18. Application of Schedule I.
In the case of a company limited by shares and registered after the commencement of this Act, if articles not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations in Schedule I, those regulations shall, so far as applicable be the regulations of the company in the same manner and to the same extent as if they were contained in the duly registered articles.
19. Form and signature of articles.
(a) be printed;
(b) be divided into paragraphs numbered consecutively;
(c) be signed by each subscriber of the memorandum, who shall add his address and description in the presence of at least two witness who shall attest the signature.
20. Alteration of articles by special resolution.
Subject to the provisions of this Act and to the conditions contained in its memorandum, a company may by special resolution alter, exclude from or add to its articles: and any alteration, exclusion or addition so made shall be as valid as if originally contained in the articles, and be subject in like manner to alteration, exclusion or addition by special resolution.
21. Effect of alteration in memorandum or articles.
Notwithstanding any thing in the memorandum or articles of a company,, no member of the company shall be bound by an alteration made in the memorandum or articles after the due on which he becomes, member, if and so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or in any way increases his liability is at that date to contribute to the share capital of, or otherwise to pay money to the company.
22. Effect of memorandum and articles.
(1) The memorandum and articles shall when registered bind the company and the members hereof to the same extent as if they respectively had been signed by each member and contained a convenient on the part of each member his heirs and leal representatives to observe all the provisions of the memorandum and of the articles subject to the provisions of this Act.
(2) All money payable by any member to the company under the memorandum or articles shall be a debt one from him to the company.
23. Registration of memorandum and articles.
(1) The memorandum and articles if any shall be field with the Registrar who if satisfied that the requirements of this Act have been complied with shall retain and register them within thirty days from the date of their receipt and in the event of refusal he shall communicate the grounds within ten days after that period to the company.
(2) An person on being aggrieved by a refusal of the Registrar under sub-section (1) may make an appeal to the Government within thirty days of the receipt of the refusal order.
(3) The petition of appeal shall be accompanied by a treasury challan showing of a fee of two hundred fifty taka to be credited under the head of account specified in this behalf.
(4) The decision of the Government in an appeal under this section shall be final.
24. Effect of registration.
(1) On the registration of the memorandum of a company the Registrar shall certify under his hand that the company is incorporated and in the case of a limited company that the company is limited.
(2) From the date of incorporation mentioned in the certificate of incorporation the subscribers of the memorandum together with such other persons as may from time to time become members of the company shall be a body corporate by the name contained in the memorandum capable forthwith of exercising all the functions of an incorporated company and having perpetual succession and a common seal but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.
25. Conclusiveness of certificate of incorporation.
(1) A certificate of incorporation given by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto have been complied with and that the association is a company authorised to the registered and duly registered under this Act.
(2) A declaration by an advocate entitled to appear before the High Court Division who is engaged in the formation of a company or by a person named in the articles as a director manager or secretary of the company of compliance with all or any of the said requirements shall be filed with the Registrar and the Registrar may accept such a declaration as sufficient evidence of compliance.
26. Copies of memorandam and articles to be given to members.
(1) Every member of a company may request for a copy of the memorandum, and also for a copy of the articles, if any, and if such request is made in writing alongwith a fee of taka fifty or such less fee as may fixed by the company, the company shall, within fourteen days from the date of such request, send the copy to that member.
(2) If a company makes default in complying with the requirements of this section, it shall be liable for each offence to a fine not exceeding two hundred taka and every officer of the company who is knowingly and willfully in default shall be liable to like penalty.
27. Alteration of memorandum of articles to be noted in every copy.
(1) Where an alteration is made in the memorandum or articles of a company, every copy of the memorandum or articles issued after the date of the date of the alteration shall be in accordance with the alteration.
(2) If, where any such alteration has been made the company at any time after the date of the alteration, issues any copies of the memorandum or article which are not in accordance with the alteration, it shall be liable to a fine not exceeding one hundred taka for each copy so issued, and every officer of the company who is knowingly and willfully in default shall also bearable to a like penalty.
Association not for profit
28. Power to dispense with Limited In name of charitable and other companies.
(1) Where it is proved to the satisfaction of the Government that an association capable of being formed as a limited company has been or in about to be formed for promoting commerce, art, science, religion, charity, or any other useful object, and appllies or intends to apply its profits, if any or other income in promoting its objects and to prohibit the payment of any dividence to its membners the Government may, by licence with approval of one of its Secretaries, direct that the association be registered as a company with limited liability, without the addition of the word “Limited” to its name, and the association may be registered accordingly.
(2) A licence by the Government under this section may be granted on such conditions and subject to such restrictions as the Government thinks fit and those conditions and restrictions shall be binding on the association and shallif the Government so directs be inserted in the memorandum and articles or in one of those documents.
(3) The association shall on registration enjoy all the privuleges of limited companies and be subject to all their obligations except those of using the word “Limited” as any part of its name and of publishing its name or of sending lists of members to the Registrar.
(4) A licence under this section may at any time be cancelled by the Government and upon cancellation the Registrar shall enter the word “Limited” at the end of the name of the association upon the register and the association shall cease to enjoy the exemptions and privileges granted by this section:
Provided that before a licence is sop cancelled the Government shall give to the association a notice in writing of its intention and the grounds their of and shall afford the association an opportunity of submitting a representation in opposition to the cancellation.
Companies Limited by Guarantee
29. Provision as to companies limited by guarantee.
(1) In the case of company limited by guarantee and not having a share capital and registered after the commencement of this Act every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void.
(2) For the purpose of this section and the other provisions of this Act. relating to the memorandum of a company limited by guarantee every provision in the memorandum or articles, or in any resolution, of any company limited by guarantee and registered after the commencement of this Act. purporting to divide the undertaking of thecompany into shares or interests shall be treated as a provision for as share capital notwithstanding that the nominal amount or number of the shares or interests is not specified thereby.
SHARE CAPITAL, REGISTRATION OF UNLIMITED COMPANY AS
LIMITED AND UNLIMITED LIABILITY OF DIRECTORS
Distribution of Share Capital
30. Nature of shares.
(1) The shares or other interests of any member a company shall be deemed to be movable property and shall be transferable in manner provided by the articles of the company.
(2) Each share in a company having a share capital shall be distinguished by the appropriate number.
31. Certificate of shares or stock.
A certificate under the common seal of the company specifying any shares or stock held by any member shall be prima facie evidence of the title of the member to the shares or stock therein specified.
32. Definition of Member.
(1) Every subscriber of the memorandum of company shall be deemed to have agreed to become a member of the company and on its registration shall be entered as a member in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members shall be a member of the company.
33. Membership of holding company
(1) Except in the cases mentioned in this section a body corporate cannot be a member of a company which is its holding company and any allotment or transfer or shares in a company to its subsidiary shall be void.
(2) Nothing in this section shall apply; namely–
(a) Where the subsidiary is the legal representative of a deceased member of the holding company; or
(b) Where the subsidiary is concerned as trustee unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of business which includes the lending of money.
(3) This section shall not prevent a subsidiary from continuing to be a member of its holding company if it was a member thereof either at the commencement of this Act or before becoming a subsidiary of the holding company; but except in the cases referred to in sub-section (2), the subsidiary shall have no right to vote at meetings of the holding company or of any class of members thereof.
(4) Subject of sub-section (2) sub-sections (1) and (3) shall apply in relation to a nominee for a body corporate which is a subsidiary as if reference in the said sub-sections (1) and (3) to such a body corporate and a subsidiary included reference to a nominee for it.
(5) In relation to a holding company which is either a company limited by guarantee or an unlimited company the reference in this section to shares shall, whether or not the company has a share capital be construed as including a reference to the interest of its members as such whatever be the form of that interest.
34. Register of member
(1) Every company shall keep in one on or more books of register of its members, and enter therein the following particulars:–
(i) the name and addresses, and the occupations, if any of the members;
(ii) in the case of a company having a share capital, a statement of the shares held by each member, distinguishing each share by its number, and of the amount paid or agreed to be considered as paid on the shares of each member;
(iii) the date at which each person was entered in the register as a member;
(iv) the date at which any person ceased to be a member.
(2) If a company makes default in complying with the requirements of this section. It shall be liable to as fine not exceeding one hundred taka for everyday during which the default continues and every officer of the company who knowingly and willfully authorise or permits the default shall also be liable to a like penalty.
35. Index of members of company
(1) Every company having more than fifty member shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall within fourteen days after the date on which any alteration is made in the register members make any necessary alteration in the index.
(2) The index which may be in the form of a card index shall in respect of each member contain a sufficient indication to enable the account of that member to be readily found.
(3) If default is made in complying with the section the company shall be liable to a fine not exceeding five hundred taka and every officer of the company who is knowingly and willfully in default shall be liable to a like penalty.
36. Annual list of members and summary
(1)Every company having a share capital shall within eighteen months from its incorporation and thereafter once at least in every year make a list of all persons who on the day of the first or only ordinary general meeting in the year are members of the company, and of all persons who have ceased to be members since the date of the last return or in the case of the first return of the incorporation of the company.
(2) The following shall be stated in the list namely:–
(a) the names, addresses, nationality and occupation of all past and [present members;
(b) the number of shares held by each of the existing members at the date of return specifying the shares transferred since the date of last return or, in the case of first return, since the date of incorporation, by persons who are still members and by persons who have ceased to be members respectively and also the dates of registration of such transfer; and
(c) a summary distinguishing between shares issued for cash and shares issued as fully or partly paid up otherwise than in cash and specifying the following:-
(1) the amount of the share capital of the company, and the number of the shares into which it is divided;
(2) the number of shares taken from the commencement of the company up to the date of the return;
(3) the amount called up on each share;
(4) the total amount of calls received;
(5) the total amount of calls unpaid;
(6) the total amount of the sums, if any, paid by way of commission in respect of any share or debentures, or allowed by way of discount, in respect of any shares or debentures, since the date of the last return or so much thereof as has not been written of at the date of the return.
(7) the total number of shares forfeited;
(8) the total amount of shares or stock for which share warrants are outstanding at the date of the last return;
(9) the total amount of share-warrants issued and surrendered respectively since the date of the last return;
(10) the latest date on which the general meeting should have been held and whether it was actually so held;
(11) the number of shares or amount of stock comprised in each sharewarrant;
(12) the names and addresses of the persons who at the date of terurn are the directors of the company and of the persons, if any, who at the said date are the managers managing agents or auditors of the company, and the changes in the personnel of the directors, managers managing agents since the last return together with the dates on which the took place; and
(13) the total amount of debt due from the company in respect of all mortgages and charges which are required to be registered with the Registrar under this Act.
(3) The above list and summary shall be contained in a separate part of the register of members, and shall be completed within twenty-one days after the day of the first or only ordinary general meeting in the year; and the company shall, within that period file with the Registrar a copy signed by two directors, including the managing director, or where there is no managing director, by a director, and manging agent or manager or secretary of the company together with a certificate from such persons that the list and summary state the facts as they stood on the day aforesaid.
(4) A private company shall send with the annual return required by subsection (1) a certificate signed by a director or other officer of the company that the company has not, since the date of the last return or in the case of a first return since the date of the incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company, and where the annual return discloses the fact that the number of members of the company exceeds fifty, also a certificate so signed that the excess consists wholly of persons who under sub-clause (ii) of clause (g) of sub-section (1) of section 2 are not be included in reckoning the number o fifty.
(5) If a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding two hundred taka for every day during which the default continues, and every officer of the company who knowingly and willfully authorises or permits the default shall be liable to the like penalty.
37. Trust not to be entered on register
No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the Registrar.
38. Transfer of shares
(1) An application for the registration of the transfer of shares in a company may be made either by the transferer or the transfere, provided where such application is made by the transferer no registration shall in case of party paid shares be effected unless the company gives motive of the application to the transferee and subject to the provisions of sub-section (7) the company shall, unless objection is made by the transferee two weeks from the date of receipt of the notice, enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application for registration was made by the transferee.
(2) For the purpose of sub-section (1), notice to the transferee shall be deemed to have been duly given if despatched by prepaid post to the transferee at the address given in the instrument of transfer and shall be deemed to ave been delivered in the ordinary course of post.
(3) It shall not be lawful for the company to register a transfer of share in or debentures of the company unless the proper instrument of transfer duly stamped and executed by the transferor and the transferee has been delivered to the company along with script:
Provided that, where it is proved to the satisfaction of the directors of the company that an instrument of transfer signed by the transferor and transferee has been lost, the company may, if the directors think fit, on an application in writing made by the transferee and bearing the stamp required by an instrument of transferor register the transfer on such terms as to indemnity as the directors may think fit.
(4) If a company refuses to register the transfer of any shares or debentures the company, shall, within one month from the date on which the instrument of transfer was lodged with the company, send to the transferee and the transferor notice of the refusal.
(5) If default is made in complying with sub-section (4) of this section, the company shall be liable to a fine not exceeding one hundred taka for everyday during which the default continues and every director, manager secretary other officer who is knowing by a party to the default shall, be liable to a like penalty.
(6) Nothing in sub-section (3) shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in or debentures of the company has been transmitted by operation of law.
(7) Nothing in this section shall prejudice any power of the company under its articles to refuse to register the transfer of any shares.
39. Certification of transfer.
(1) The certification by a company of any instrument of transfer of shares in, or debentures of, the company, shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prime facie title to the shares or debentures in the transfer named in the instrument of transfer, but not as a representation that transferor has complete title to the shares or debentures.
(2) Where any person acts on the faith of an erroneous certification made by a company negligently, the company shall be under the same liability to him as if the certification has been made fraudulently.
(3) For the purposes of this section-
(a) an instrument of transfer shall be deemed to have certificated if it bears the words ‘certificate lodged” or words to the like effect;
(b) the certification of an instrument of transfer shall be deemed to be made by a company, if-
(i) the person issuing the certificated instrument is a person authorise to issue such instruments of transfer on the company’s behalf; and
(ii) the certification is signed by any officer or servant of the company or any other person authorised to certificate transfers on the company’s behalf, or if a body corporate has been so authorised by any officer or servant of that body corporate;
(c) a certification shall be deemed to be signed by any person if it purports to be authenticated by his signature, unless it is shown that the signature was placed there neither by himself nor by any person authorised to use the signature for the purpose of certificating transfers on the company’s behalf.
40. Transfer by legal representative.
A transfer of the share or other interest of a decease member of a company made by his legal representative shall, although the legal representative is not himself a member, be as valid, as if he had been a member at the time of the execution of the instrument of transfer.
41. Inspection of register of members.
(1) The register of members commencing from the date of the registration of the company and where section 35 applies also the index of members shall be kept at the registered office of the company, and such register and index shall, except when closed under the provisions of this Act shall during business hours subject to such reasonable restrictions as the company in general meeting impose, so that not less than two hours in each day be allowed for inspection, be kept open to the inspection of any member free of cost and to the inspection of any other person on payment of one hundred taka or such less sum as the company may prescribe for each inspection, and any such member or other person may make extract thereform.
(2) Any member or other person may require a copy of the register or of any part therof or of the list and summary required by this Act or any part thereof, on payment of five taka for every hundred words or fractional part thereof required to be copied and the company shall cause any copy so required by any person to be sent to that person within a period of ten days commencing on the day next after the day on which the requirement is received by the company.
For the purpose of this sub-section in reckoning the ten working days, the non-working days and days on which the transfer books of the company remain closed shall be excluded.
(3) If any inspection required under this section is refused or if any copy required under this section is not sent within the proper period the company and every officer of the company who is in default shall be liable in respect of each offence to a fine not exceeding one hundred taka and to a further fine not exceeding one hundred taka for everyday during which the refusal or default continues, and the Court may by an order compel an immediate inspection of the register and index or direct that copies required shall be sent to the persons requiring them.
42. Power to close register.
A company may on giving seven day’s previous notice by advertisement in some newspaper circulating in the district in which the registered office of the company is situated close the register of members for any time or times not exceeding in the whole forty-five days in each year but bot exceeding thirty days at a time.
43. Power of Court to rectify register
(a) the name of any person is without sufficient cause entered in or omitted from the register of members of a company; or
(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having become, or ceased to be, a member,
the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register.
(2) The Court may either refuse the application, or may order rectification of the register and payment by the company of any damages sustained by any party aggrieved and may also make such order as costs as it may consider proper.
(3) On any application under this section the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register whether the question arises between members or alleged members or between members or alleged members on the one hand and the company on the other hand and generally may decide any question necessary or expedient to be decided for rectification of the register and may also decide any issue involving any question of law.
44. Notice to Registerar for rectification of register.
In the case of a company required by this Act to file a list of its members with the Register, the Court when making an order for rectification of the register shall by its order direct notice of the rectification to be filed with the Registrar within from the date of completion of the order.
45. Register to be evidence.
The register of members shall be primafacie evidence of any matter by this Act directed authorised to be inserted therein.
46. Issue of share warrants to bearer
(1) A company limited by shares if so authorised by its articles may with respect to any fully paid-up shares or to stock issue under its common seal a warrant stating that the bearer of the warrant is entitled to the shares on stock therein specified and may provide by coupons or otherwise for the payment of the future dividends on the shares or stock included in the warrant in this Act termed as share-warrant.
(2) Nothing in this section shall apply to a private company.
47. Effect of sharewarrant.
A share warrant shall entitle the bearer thereof to the shares or stock therein specified and the shares or stock may be transferred by delivery of the warrant.
48. Registration of name of bearer of share warrant.
The bearer of a sharewarrant shall subject to the articles of the company, be entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members; and the company shall be responsible for any loss incurre by any person by reason of the company entering in its register the name of a bearer of a share- warrant in respect of the share of stock therin specified without the warrant being surrendered and cancelled.