Tag Archives: Shifting of Registered Office

ALTERATION OF MEMORANDUM AND ARTICLES (COMPANIES BILL 2012)

(UPDATE: on 30th August 2013: Companies Bill as passed by Lok Sabha on 18th December 2012 (called Companies Bill, 2012) and passed by Rajya Sabha on 8th August 2013 (became Companies Bill 2013) got Assent of President of India and became the Companies Act, 2013 (Act 18 of 2013). All applicable provision will come into in force on Notification issued by Central Government. All reference of Companies Bill, 2012 or Companies Bill, 2013 may be read as the Companies Act, 2013)

In last blog post, commencement of business and registered office, I discussed Section 11 and 12 of the Companies Bill, 2012. In this post, I will discuss, Alteration of Memorandum and Articles of the company and relevant issues.

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ALTERATION OF MEMORANDUM (SECTION 13):

A Company can alter its memorandum by a special resolution, and after complying requirement of Section 13.

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Change in Name:

Any Change in name of the company shall be subject to sub – section (2) and (3) of Section 4, which we have discussed in an earlier post here under heading Name of Company. Any such change of name shall have effect only after approval of Central government in writing. This approval is not required in case of conversion of company from one class to another, like Public Company converting into One Person Company.

In case of change in name, the registrar shall enter replace new name for old name in its register and shall issue a fresh Certificate of Incorporation. The change in name shall be effective only on issue of this fresh certificate of incorporation.

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Shifting of Registered Office from one State to Another:

Any alteration relating to place i.e. state of registered office shall take effect only after approval by the Central Government.

The Central Government shall dispose of the application for approval of shifting of registered office from one state to another within sixty days. This alteration should have consent of the creditors, debentures – holders, and other persons concerned with the company. The company should have made sufficient provision for the discharge of all its debts and obligations or adequate security should have been provided for such discharge. This is duty of Central Government, before giving approval of the application to satisfied itself about such consent and such sufficient provision to discharge debts and obligations.

It is not clear, what will happen in case of pendency of such application beyond this statutory period of sixty days.

A certified copy of such order by Central Government approving the alteration shall be filed by the company with the Registrar of each States. The Registrar of the State, where registered office is being shifted shall issue a fresh certificate of Incorporation.

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Alteration of Objects:

A Company, which has raised money from public and has a unutilised amount out of money so raised, shall not change its objects for which it raised the money through prospectus unless a special resolution is passed by the company.

The prescribed details in respect of this special resolution shall be published in newspapers (one in English and another in local language) which are in circulation at place where registered office of the company is situated. These details shall also be placed on the Website of the company, if any. These details shall indicate the justification for such change in objects of the company.

All dissenting shareholders shall be given an opportunity to exit by the promoters and shareholders having control of the company. This opportunity shall be given in accordance with regulation specified by the Securities and Exchange Board of India (SEBI).

In case of all other companies, like; one man company, Private Company or a public company which has not raised any money from public or a public company which has raised some money from public but has no unutilised amount out of money so raised, may alter its object clause only by passing a special resolution.

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Registration of Alteration of Memorandum:

In relation to any alteration of its memorandum, company shall file with the Registrar –

The special resolution passed by the company,

The approval of Central Government, in case of change in name, and

The approval of Central Government, in case of shifting of registered office from one state to another (file with both Registrars in this case).

The Registrar shall register the alteration in case of change in object and certify the registration within thirty days. In case of Change of name and shifting of registered office from one state to another, fresh certificate of incorporation shall be issued.

No alteration of memorandum shall take effect until it has been registered by the registered under this Section.

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Limitation on Alteration of Memorandum:

In case of a company limited by guarantee and not having a share capital, any alteration of the memorandum proposing to give any non – member a right to participate in divisible profits of the company shall void.

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ALTERATION OF ARTICLES (SECTION 14):

A company may alter its articles by a special resolution, subject to condition contained in its Memorandum. There is no special provision for alteration of articles to convert a private company into a public company or a public company into a private company.

Any conversion of a public company into a private company shall take effect only after approval of the Tribunal. Tribunal has power to make such order as it may consider fit.

Every alteration of article and copy of order of the Tribunal shall be filed within fifteen days with the Registrar along with printed copy of altered articles.

Any alteration of the articles shall be valid as if it were originally in the articles.

Is it means all alteration of articles shall have retrospective effect since date of incorporation of the company? To be prudent, drafting of alteration should convey its effective date and old provision should be there as footnote.

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NOTE OF ALTERATION IN EVERY COPY (SECTION 15):

Every Alteration made in Memorandum or Articles shall be noted in every copy of the Memorandum or Articles.

Use of term “Noted” is significant one. This is the requirement of this section to note the alteration not just make alteration. This means this alteration must be clearly made visible through footnote etc.

Any default in this Section shall attract penalties. For every copy of Memorandum or Articles issued without such alteration, the company and every officer in default shall be liable to a penalty of one thousand rupees.

It is prudent to issue a copy of memorandum or articles by mentioning date of such issue and date of last alteration made in that particular copy.

COMMENCEMENT OF BUSINESS AND REGISTERED OFFICE (COMPANIES BILL, 2012)

(UPDATE: on 30th August 2013: Companies Bill as passed by Lok Sabha on 18th December 2012 (called Companies Bill, 2012) and passed by Rajya Sabha on 8th August 2013 (became Companies Bill 2013) got Assent of President of India and became the Companies Act, 2013 (Act 18 of 2013). All applicable provision will come into in force on Notification issued by Central Government. All reference of Companies Bill, 2012 or Companies Bill, 2013 may be read as the Companies Act, 2013)

In last Blog Post, I discussed formation and incorporation of company and its effects. What next? Business, but comply certain legal provisions. Here, we will discuss provision related to present companies Bill, 2012.

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COMMENCEMENT OF BUSINESS (SECTION 11):

Before starting any business or borrow any money, every company having share capital, shall have to comply two requirements.

Firstly, A Director of company shall file a declaration with Registrar of companies, that:

(i)           Every subscriber to the memorandum has paid the value of shares agreed to be taken by him,

(ii)          The paid up capital of company is not less than one lakh in case of private company or five lakh in case of public company on date of declaration.

Any commencement of business or borrowing before complying above requirement, the company shall liable five thousand rupees (one time) and every officer who is in default shall be punishable with fine up to rupees one thousand for every day during which the default continues.

If no declaration has filed within one hundred and eighty day of the date of incorporation, the registrar may initiate action for removal of name of company from register of companies.

This simply means company should receive from their subscribers all the money value of shares subscribed by them before commencing the business. The company should take that money value into its book of accounts.  After receiving all this money value from subscribers and other shareholders, the paid up capital of the company should be in conformity of minimum paid up share capital requirement. At this point, please, recall Section 10 (2), all monies payable by any member to the company under the memorandum or articles shall be a debt due from him to the company. That Section 10 (2) may not help company to commence its business but act against subscriber only. Effectively, all subscribers must pay their subscription money in total within one hundred and eighty days from the date of incorporation.

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REGISTERED OFFICE OF COMPANY (SECTION 12):

The company shall have on and from fifteenth day of its incorporation and all time thereafter a registered office for all communication purpose. When we read all other provision under Companied Bill, 2012 the registered office is office of company is a hub connecting the company and outside world.

The company shall furnish verification of its registered office within a period of thirty days of its incorporation. The term “verification” conveys its very specific meaning. This is not information from company about address, which was a case earlier. Under this law, the company shall file verification from independent professional of its address.

The company shall paint or affix its name and address on its registered office and on outside wall of every office and place of business in conspicuous position, in legible letters. In case characters employed for affixing the name are not in local language, then also in character of local language.

The company shall have its name engraved in legible character on its seal.

The company shall get its name, address of its registered office, Corporate Identity Number, telephone number, fax number (if any), e – mail address and website (if any) printed on all its business letters, billheads, letter papers, all its notices and other official publications.

The company shall also have its name printed on hundies, promissory notes, bill of exchange, and such other documents as may be prescribed.

Where the company has changed its name, it shall paint or affix present name and earlier name for next two years. In other words, when company has changed its name one or more time in last two years, all such name shall be painted or affixed same time.

In case of “One Person Company”, the words “One Person Company” shall be mentioned below the name of the company.

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In case of change in registered a notice of change duly verified shall be given to Registrar within fifteen days of such change.

The Registered Office of a company may be changed to any place outside the local limit of any city, town or village after passing a special resolution by the company. The change in the place of Registered Office from the jurisdiction of one registrar to the jurisdiction of another registrar shall be approved by the Regional Director. The Regional Director shall communicate his decision within thirty days from the date of application and the company shall file the confirmation within a period of sixty days thereafter.

We know, Shifting of Registered Office from one state to another state amount to alteration of Memorandum of the company. We will discuss this along with other aspects related to alteration of memorandum in next blog post.

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