When the ordinary meeting machinery fails
Section 98 of the Companies Act, 2013 lets the National Company Law Tribunal order a company meeting other than an AGM if calling it in the usual manner, or holding or conducting it as the Act or articles prescribe, is impracticable. Identify which act cannot be done and why. The section does not make an EGM valid merely because its proponents describe a deadlock.
Read the applicable text: Companies Act, 2013, sections 97–103 and 114 NCLT Rules, 2016, Rules 74–75 and Annexure B.
Who can seek an order
The Tribunal may act on its own motion or on an application by a director or a member entitled to vote at the meeting. Check that status against current records and the particular business. Section 100’s member requisition is a separate route. At receipt of the requisition, qualifying members of a company with share capital must hold at least one-tenth of the paid-up share capital carrying voting rights on the matter. Where there is no share capital, use at least one-tenth of the total voting power of members entitled to vote on it. The ability of one qualified person to apply under section 98 does not itself authorise that person to hold the meeting.
Show the failed procedure
Prepare a dated account of efforts to call the meeting, deliver notice, secure quorum or conduct business. Show what the Act and articles require, which steps were attempted and why an ordinary alternative cannot solve the problem. Attach the relevant records and explain their legal effect; repeated failure may support an application but does not require the Tribunal to grant it. Separate refusal or inability to participate from a mere disagreement over how members may vote. Quantify quorum by qualifying persons present and keep the vote calculation separate. Under the ordinary section 103 rule, quorum is two members personally present for a private company; for public companies it is five if membership is up to 1,000, fifteen if above 1,000 and up to 5,000, and thirty if above 5,000. Check the company’s articles and any applicable exemptions or modifications. If quorum is missing after half an hour, the ordinary rules distinguish a requisitioned meeting, which stands cancelled, from a meeting that is adjourned under section 103(2). Review section 103(3) before treating a first failed attempt as proof of impracticability.
Ask for a workable order
Section 98(1) permits directions on how the meeting is called, held and conducted, and ancillary or consequential directions. It expressly permits a direction treating one member present in person or by proxy as constituting a meeting. Request only the changes needed. Put notice recipients, meeting date or time window, chair, attendance evidence, resolution text and voting process into the proposed directions where the facts warrant them. Do not assume a quorum direction also modifies notice or gives the attendee more voting power.
Prepare and close the filing
Under NCLT Rule 75 file Form NCLT-1 with the Annexure B documents, and serve a copy on the Registrar of Companies on or before the hearing date. Check current bench and filing requirements and document service. An AGM default belongs under section 97 and Rule 74. After the order, minute compliance condition by condition: under section 98(2) the deeming rule applies to a meeting called, held and conducted in accordance with the order. Check separately whether resolutions need filing or trigger other corporate steps.
Six worked illustrations
All facts and amounts are fictional. Calculations illustrate the stated assumptions, not a predetermined legal outcome.
Illustrative example 1: Private company stuck on quorum
Assume the ordinary section 103 quorum applies and no different provision in the articles applies. One of two members attends each of three separately convened original meetings; each is one person short of the ordinary two. Determine the status of each meeting and whether the statutory adjournment route is workable before seeking an order. The notices and attendance records show repeated failure. A one-member direction would resolve that deficit only if the Tribunal grants it.
Illustrative example 2: Votes do not create an extra person
A voting member holds 92,000 of 100,000 eligible votes, or 92%. For the ordinary two-person quorum of this private company, that person's attendance is still one short. Show both counts in the application.
Illustrative example 3: Threshold belongs to a different route
A member holds 700 of 10,000 paid-up shares carrying voting rights on the matter, all equal. Its 7% falls 300 shares below the 10% section 100 requisition benchmark; assess section 98 voting entitlement and impracticability separately.
Illustrative example 4: Test a limited quorum order
An order permits a one-member quorum. At the meeting one eligible member attends with 400 of 1,000 eligible votes. One attendee meets the specific quorum direction. The member holds 40% of eligible votes, which does not by itself determine the share of votes cast. Apply the voting method, resolution threshold and any separate restrictions on the proposed business.
Illustrative example 5: Keep proof of each condition
An order lists four steps before the meeting: serve two identified recipients, publish one notice and lodge one service affidavit. The file proves the two services and publication, or three of four steps. Flag the missing affidavit and obtain directions as needed.
Illustrative example 6: Check evidence delivery before hearing
A hearing is set for 18 November. Service on the Registrar is proved on 16 November, two calendar days earlier. That evidence meets the Rule 75(2) timing on those facts; retain delivery proof with the application.
Ten-step verification table
| Step | Action | Evidence |
|---|---|---|
| 1 | Identify the proposed meeting and business | Draft agenda and exact resolutions |
| 2 | Exclude an AGM route | Statutory meeting calendar |
| 3 | Verify applicant capacity | Current director record or member register and voting rights |
| 4 | Read the ordinary procedure | Act, articles and company-specific quorum worksheet |
| 5 | Trace each failed attempt | Dated notices, minutes and attendance |
| 6 | Test other practicable routes | Record of board or member steps and why they fail |
| 7 | Draft narrow proposed directions | Order draft covering the actual obstruction |
| 8 | File and prove service | NCLT-1, Annexure B documents and RoC delivery |
| 9 | Apply the sealed order line by line | Signed notice, attendance and voting file |
| 10 | Review resulting resolutions | Minutes, filing assessment and follow-up owners |
Sixteen practitioner FAQs
1. Can the board invoke section 98 by resolution alone?
Only the Tribunal can issue the order. A board record may help explain the obstruction.
2. Does section 98 cover a missed AGM?
No. Consider section 97 and Rule 74 for an AGM default.
3. Can any member apply?
The Act specifies a member entitled to vote at the meeting; check the proposed business and rights.
4. May a director apply without shares?
The Act separately identifies any director; prove current office.
5. Does a director need to win the proposed vote first?
No. Standing and impracticability are distinct from how the resolution may be decided.
6. Can the Tribunal act without an application?
Section 98(1) provides for action on its own motion.
7. What if the board can still validly call the meeting?
Explain whether it can actually be held and conducted. A workable ordinary process weakens the request.
8. Is 10% a universal standing threshold?
No. Do not import the section 100 requisition threshold into section 98.
9. Can a proxy be the sole person present?
Section 98 expressly permits the Tribunal to direct that one member present in person or by proxy constitutes the meeting. Read the actual order.
10. Does a one-member quorum automatically pass a resolution?
No. Apply the applicable voting method and passage threshold.
11. Should disputed notices be omitted from the application?
No. Include them, with dates, defects alleged and proof of delivery.
12. What if articles and the draft order differ?
Identify each difference and seek express directions rather than infer a blanket override.
13. Which rule specifies NCLT-1 here?
Rule 75 for a non-AGM application; Rule 74 addresses AGM applications separately.
14. When must the Registrar get a copy?
On or before the hearing date under Rule 75(2).
15. What if the meeting date in the order cannot be met?
Seek suitable further directions before departing from the order.
16. Does the order finish post-meeting compliance?
No. Keep the minutes and assess filing or implementation requirements for each resolution.
Official sources
Companies Act, 2013, sections 97–103 and 114 NCLT Rules, 2016, Rules 74–75 and Annexure B