OP. ED.Practical Lawyer Archives

Introduction

Generally, a person whose name appears in the register of members is presumed to have a beneficial interest in the shares registered in his name. However, in certain cases, the person whose name appears in the register may be holding shares on behalf of or for the benefit of some other person i.e. the “beneficial interest” may belong to someone else.

“Beneficial interest” in shares of a company is a very important aspect from the perspective of the shareholders and person holding beneficial interest. Section 89 of the Companies Act, 2013 (the Act) relates to the declaration of beneficial interest in shares. Also, understanding the provisions of Section 89 of the Act is also important from the perspective of complying with the provisions of Section 90 (relating to “register of significant beneficial owners in a company”). This article is a checklist w.r.t. beneficial interest in shares, disclosures and compliances.

1. Identification of “Registered Owner”.—Registered owner of the shares means a person whose name is entered in the register of members of a company, but such person does not hold any beneficial interest in such shares. 

2. Identification of “Beneficial Owner”.—Beneficial owner of the shares means a person who holds “beneficial interest” in the company. “Beneficial interest” refers to the rights or entitlements of a person in the shares. Section 89(10) of the Act defines “beneficial interest” in a share as it includes, directly or indirectly, through any contract, arrangement or otherwise, the right or entitlement of a person alone or together with any other person to: 

(i) exercise or cause to be exercised any or all of the rights attached to such share; or

(ii) receive or participate in any dividend or other distribution in respect of such share.

3. Reporting Obligation of “Registered Owner”.—The person who is a registered owner of shares shall make a declaration (Form No. MGT-4) within 30 days from the date on which his name is entered in the register of members of the company. In the declaration, the registered owner shall specify the name and other particulars of the person who holds the beneficial interest in such shares. Where any change occurs in the beneficial interest in such shares, the registered owner shall, within 30 days from the date of such change, make a declaration (Form No. MGT-4) of such change to the company.

4. Reporting Obligation of Beneficial Owner.—The person who holds or acquires a beneficial interest in share of a company shall make a declaration (Form No. MGT-5) within 30 days after acquiring such beneficial interest in the shares of the company. In the declaration, the beneficial owner shall specify the nature of his interest, particulars of the person in whose name the shares stand registered in the books of the company and such other particulars as may be prescribed. Where any change occurs in the beneficial interest in such shares, the beneficial owner shall, within 30 days from the date of such change, make a declaration (Form No. MGT-5) of such change to the company.

5. Duty of the Company.—Where any declaration under Section 89 of the Act is made to a company, the company shall make a note of such declaration in the register of members. The company shall file, within 30 days from the date of receipt of declaration by it, a return (e-Form MGT-6) with the Registrar of Companies in respect of such declaration with such fees or additional fees as may be prescribed. However, private company or unlisted public company which is licensed to operate by Reserve Bank of India (RBI) or Securities and Exchange Board of India (SEBI) or Intercultural Development Research Association (IDRA) from International Financial Services Centre (IFSC) located in an approved multi-services Special Economic Zones (SEZs) set up under Special Economic Zones Act, 2005 (i.e. specified IFSC private company), shall file e-Form MGT-6 within 60 days from the date of receipt of declaration with the Registrar of Companies.

6. Non-Applicability of Provisions of Section 89 of the Act.—The provisions of Section 89 of the Act and Rule 9 of the Companies (Management and Administration) Rules, 2014 are not applicable to a trust which is created, to set up a mutual fund or venture capital fund or such other fund as may be approved by SEBI. Also, the provisions of Sections 89 and 90 of the Act are not applicable to government companies.

7. Consequences of Failure to Declare Beneficial Interest.—Failure to declare beneficial interest results into loss of right in relation to any share in respect of which a declaration is required to be made under Section 89 of the Act but not made by the beneficial owner, and such right cannot be enforced by him or by any person claiming through him.

8. Payment of Dividend.—Section 89 of the Act does not prejudice the obligation of a company to pay a dividend to its members under the Act and the said obligation, on such payment, stands discharged.


Gaurav N Pingle, Practising Company Secretary, Pune. He can be reached at gp@csgauravpingle.com.
Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira J. de Abrew, L.T.B. Dehideniya and Murdu N.B. Fernando, JJ., dismissed an appeal which was filed before the Court aggrieved by the judgment dated 17-09-2010 of the Civil Appellate High Court which had upheld the decision of the District Court. The Supreme Court had granted Leave to Appeal on 26-08-2011 on four questions of law.

The Plaintiff had become the owner of the land in issue in 1987 and had transferred the land to B.A. Lionel upon Deed as security for a loan obtained by her reserving the beneficial right to herself. In 1994 when B.A. Lionel requested re-payment of the loan she was not in a position to pay back the loan after which the defendant paid the due sum to B.A. Lionel and in return he transferred him the land by deed. The Plaintiff contended that as the beneficial rights were not transferred by her and she continued to live in the same place the land cannot be transferred to which the purchaser who is the second defendant contends that he was a bona fide purchaser. During the pendency of the application in the Magistrate Court the plaintiff had alleged that she was being dispossessed from the land and the magistrate had ordered the restoration of the possession by an order. The second defendant went against the order by the magistrate to the High court and it set aside the said order on the basis that a breach of the peace had not occurred for the Plaintiff to go before the Magistrate. The Plaintiff had appealed to the Court of Appeal against the said Order and on 28-02-2000, the Court of Appeal dismissed the appeal and affirmed the Order of the High Court and held that the Court of Appeal was unable to accept on the material submitted that the land in suit was subjected to a mortgage or that the Plaintiff was in possession of the land in suit at the time the private plaint was filed. While the application in Court of Appeal was pending the Plaintiff went to the District Court from which the instant appeal lies and later the District Court rejected the plant and held that the second defendant was entitled to the land and in appeal, the High Court had upheld the same decision.

The Court while dismissing the appeal explained that in the instant appeal the Plaintiff should have placed relevant evidence before the trial court for the court to reasonably infer from the attendant circumstances, that the beneficial interest was still with her and thus the appeal does not amount to creation of a trust in favour of the Plaintiff and that the Plaintiff has no beneficial interest in the land in suit. [Balasuriya Lekamlage Somawathie v. Severinus Dilano Ranjith Alles, 2019 SCC OnLine SL SC 15, decided on 05-12-2019]