Companies Act Section 89 — Declaration in respect of beneficial interest in any share

CHAPTER VII MANAGEMENT AND ADMINISTRATION

Commercial / Corporate

Summary

Sub-section (1) requires a person whose name appears in the company's register of members as the holder of shares, but who does not actually own the beneficial interest in those shares, to make a declaration to the company. This declaration must be made within the time and in the form prescribed, and it must specify the name and other details of the person who holds the beneficial interest.

Sub-section (2) requires every person who holds or acquires a beneficial interest in a company's shares to make a declaration to the company. This declaration must specify the nature of the person's interest, the details of the person in whose name the shares are registered in the company's books, and any other particulars as prescribed.

Sub-section (3) deals with changes in beneficial interest. If any change occurs in the beneficial interest in such shares, both the person referred to in sub-section (1) and the beneficial owner specified in sub-section (2) must make a declaration to the company within thirty days from the date of the change. This declaration must be in the form and contain the particulars as prescribed.

Sub-section (4) empowers the Central Government to make rules regarding the manner of holding and disclosing beneficial interest and beneficial ownership under this section.

Sub-section (5) sets a penalty for failing to make a declaration as required under sub-section (1), (2), or (3). The penalty is fifty thousand rupees, and if the failure continues, an additional penalty of two hundred rupees for each day after the first day of failure, up to a maximum of five lakh rupees.

Sub-section (6) requires the company, upon receiving any declaration under this section, to make a note of it in the relevant register. The company must also file a return in the prescribed form with the Registrar within thirty days from the date of receipt of the declaration, along with any prescribed fees or additional fees.

Sub-section (7) imposes a penalty if a company fails to file the return required under sub-section (6) before the expiry of the specified time. The company and every officer in default are liable to a penalty of one thousand rupees for each day the failure continues, up to a maximum of five lakh rupees for the company and two lakh rupees for an officer in default.

Sub-section (8) states that if a declaration is required to be made under this section but is not made by the beneficial owner, no right in relation to the share concerned can be enforced by the beneficial owner or by any person claiming through him.

Sub-section (9) clarifies that nothing in this section affects the company's obligation to pay dividends to its members under the Act. Once such payment is made, the company's obligation stands discharged.

Sub-section (10) defines beneficial interest in a share for the purposes of this section and section 90. It includes, directly or indirectly, through any contract, arrangement, or otherwise, the right or entitlement of a person, alone or with others, to exercise or cause the exercise of any or all rights attached to the share, or to receive or participate in any dividend or other distribution in respect of the share.

Sub-section (11) allows the Central Government to exempt any class or classes of persons from complying with any requirements of this section, except sub-section (10), if it considers such exemption necessary in the public interest. The exemption may be granted unconditionally or subject to conditions specified in the notification.

Official Text

(1) Where the name of a person is entered in the register of members of a company as the holder of shares in that company but who does not hold the beneficial interest in such shares, such person shall make a declaration within such time and in such form as may be prescribed to the company specifying the name and other particulars of the person who holds the beneficial interest in such shares.

(2) Every person who holds or acquires a beneficial interest in share of a company shall make a declaration to the company specifying 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.

(3) Where any change occurs in the beneficial interest in such shares, the person referred to in sub-section (1) and the beneficial owner specified in sub-section (2) shall, within a period of thirty days from the date of such change, make a declaration to the company in such form and containing such particulars as may be prescribed.

(4) The Central Government may make rules to provide for the manner of holding and disclosing beneficial interest and beneficial ownership under this section. 1[

(5) If any person fails to make a declaration as required under sub-section (1) or sub-section (2) or sub-section (3), he shall be liable to a penalty of fifty thousand rupees and in case of continuing failure, with a further penalty of two hundred rupees for each day after the first during which such failure continues, subject to a maximum of five lakh rupees.]

(6) Where any declaration under this section is made to a company, the company shall make a note of such declaration in the register concerned and shall file, within thirty days from the date of receipt of declaration by it, a return in the prescribed form with the Registrar in respect of such declaration with such fees or additional fees as may be prescribed, 2***. 3[

(7) If a company, required to file a return under sub-section (6), fails to do so before the expiry of the time specified therein, the company and every officer of the company who is in default shall be liable to a penalty of one thousand rupees for each day during which such failure continues, subject to a maximum of five lakh rupees in the case of a company and two lakh rupees in case of an officer who is in default.]

(8) No right in relation to any share in respect of which a declaration is required to be made under this section but not made by the beneficial owner, shall be enforceable by him or by any person claiming through him.

(9) Nothing in this section shall be deemed to prejudice the obligation of a company to pay dividend to its members under this Act and the said obligation shall, on such payment, stand discharged. 4[

(10) For the purposes of this section and section 90, beneficial interest in a share 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.] 5[

(11) The Central Government may, by notification, exempt any class or classes of persons from complying with any of the requirements of this section, except sub-section (10), if it is considered necessary to grant such exemption in the public interest and any such exemption may be granted either unconditionally or subject to such conditions as may be specified in the notification.] 6