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Company Law

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This presentation enumerates the provisions of company law with respect to change of name, change of object, shifting of registered office, appointment of directors, Section 25 company and charges.

This presentation enumerates the provisions of company law with respect to change of name, change of object, shifting of registered office, appointment of directors, Section 25 company and charges.

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    Company Law Company Law Presentation Transcript

    • Contents
    • Change of Name
    • Regulatory Provisions-Section 21Company can change its name by Special Resolution & prior approval ofthe Central Government (ROC).If the change consists only of addition /deletion of word “Private”,then ROC approval would not be required. 
    • Procedure Of Name Change
    • Key Points……..• The main objects of the company should be commensurate with proposed name otherwise the main objects of the company should be altered first.• A copy of MOA is to be attached with a Form 1A while applying for name availability.• In case of listed Company there should be a gap of atleast 1 year between 2 name changes.• In case of listed company, If change in name signifies new activity & then atleast 50%of revenues of preceding year must be from those activities.
    • Key Points…….. Before Submission of name change papers with the ROC, the following has to be checked: o Annual filings for last two Years o Appointment of MD & Company Secretary if required by the company o Qualifications in Auditor’s report. o Transactions related to 297/295
    • Regulatory Provisions-Section 22 Applicable in case of registration of two companies with identical or similar name. The Regional Director :  may either suo moto or  On application by owner of registered trademark, Direct the company , which is registered later to change its name within period of 3 months from the date of order The Regional Director can only pass order to change the name within 12 months of first registration or registration by new name. No application for rectification can be made by owner of registered trademark, after 5 years of registration of company.
    • Procedure-Self Rectification
    • Procedure-Rectification by other
    • Change of Object Clause
    • Regulatory Provision - Section 17A Company may by Special Resolution alter its object clause
    • Procedure
    • Regulatory Provision - Section 18
    • Regulatory Provision - Section 19
    • Considerable Points
    • Shifting of Registered Office
    • Shifting of Registered Office
    • Shifting of Registered Officewithin Local Limits of City or Town
    • Procedure
    • Shifting of Registered Office outside Local Limits ofCity or Town within the same state
    • Procedure
    • Shifting of Registered Officefrom jurisdiction of one ROC to another within same State
    • Regulatory Provision - Section 17A “No Company shall Change the place of its Registered Office from one place to another within a state unless such change is confirmed by the Regional Director”
    • Procedure
    • Shifting of Registered Office from one State to another
    • Regulatory Provision - Section 17 (1) “A Company may by Special Resolution change the place of Registered office from one state to another “
    • Regulatory Provision - Section 17 (2)“Change shall take effect only if it is confirmed by the Company Law Board on Petition”
    • Procedure*In case of Listed Company, Process will be carried through Postal Ballot
    • Post Approval of PetitionForm Filing Form 21 - attachments CLB Order, Certified copy of Altered Memorandum of Association. Form 18 – attachments CLB Order, Board Resolution noting CLB order and effecting change of registered office or if enabling resolution passed earlier, such board resolution, Certified copy of Altered Memorandum of Association, Copy of paid SRN of Form 21 evidencing that Form 21 has already been filed.
    • Registration Process of Form 18 Old ROC to approve Form 21 New ROC to approve Form 18 after verifying that Form 21 has been approved and registered by Old ROC On approval of Form 18 by New ROC a new CIN number would be generated A message would be sent by system to Old ROC and then Old Roc shall approve Form 18 System would generate a new Certificate of Incorporation
    • Appointment of Director
    • Modes of Appointment
    • BY BOARD OF DIRECTORS Additional Director Casual Director Alternate Director
    • Regulatory Provision-Additional Director As per Section 260 of the Companies Act, 1956, the Board of Directors of the Company can appoint Additional Director and such Director shall hold their office till the start of the next Annual General Meeting
    • Key points……. Additional Director can be appointed by resolution passed by circulation. Additional Directors are not counted for the purpose of ascertaining the Directors liable to retire. Additional Director should be appointed within the overall limit of number of Directors prescribed by the Articles of Association.
    • Procedure- Additional Director Additional Director will submit the following : •Consent to act as Director u/s 264, in case public company •Declaration of interest u/s 299 of the Act. •Declaration of qualification u/s 274 (1)(g) of the Act
    • Regulatory Provision-Casual Director As per Section 262 of the Act, a public company or a private company which is a subsidiary of a pubic company, if the office of any director appointed by the company in General Meeting is, vacated before his, term of office will expire in the normal course, the regulating casual vacancy may, in default of and ,subject to any regulation, in the article, of the company, be filled by the Board of directors at a meeting of the Board.
    • Key points……. The concept of casual vacancy does not apply to Private Company. Casual Vacancy can only be filed in the meeting of Board of Directors. Casual vacancy can only be in case of Directors who are appointed in the general meeting The person appointed to fill the casual vacancy shall hold his office as per the tenure of the Director , in whose place he was appointed.
    • Procedure- Casual Vacancy Director appointed shall submit the following : •Consent to act as Director u/s 264, in case public company •Declaration of interest u/s 299 of the Act. •Declaration of qualification u/s 274 (1)(g) of the Act
    • Regulatory Provision-Alternate Director As per section 313 (1) of the Act, the Board of directors of a company may, if so authorised by its articles or by a resolution passed by the company in general meeting, appoint an alternate director to act for a director (here in after in this section called the original director) during his absence for a period of not less than three months from the State in which meetings of the Board are ordinarily held. As per section 313 (2) of the Act, an alternate director appointed under subsection (1) shall not hold office as such for a period longer than that permissible to the original director in whose place he has been appointed and shall vacate office If and when the original director returns to the State in which meetings of the Board are ordinarily held.
    • Key Points….. The Board of Directors can only appoint Alternate Directors, when they are authorized by the Articles of Association or by General Meeting. The Director must have been gone from the state for period of more than 3 months, where generally the meetings of the Board take place. The period of Alternate Director will end , when the original Directors returns in the State and intimate the same to the Company. If before return of the Original Director, his term expires, than the term of Alternate Director, will automatically expire. The original Director cannot nominate any person as its alternate
    • Procedure- Alternate Director Alternate Director appointed will submit the following : •Consent to act as Director u/s 264, in case public company •Declaration of interest u/s 299 of the Act. •Declaration of qualification u/s 274 (1)(g) of the Act
    • BY SHAREHOLDERS“The shareholders can under Section 257 of the Act subject tothe consent of the shareholders, appoint any person theDirector of the Company”
    • ProcedureThe Director appointed will submit the following : •Consent to act as Director u/s 264, in case public company •Declaration of interest u/s 299 of the Act. •Declaration of qualification u/s 274 (1)(g) of the Act
    • BY CENTRAL GOVERNMENTAs per section 408 of the Act, the Central Government mayappoint such number of persons as the Company Law Boardmay, by order in Writing, specify as being necessary toeffectively safeguard the interests of the company, or itsshareholders or the public interests to hold office as directorsthereof for such period, not exceeding three years on anyoneoccasion.A person appointed by the Central Government shall hold officeas an additional director, shall not be required to hold anyqualification shares nor his period of office shall be liable todetermination by retirement of directors by rotation.
    • Filing of Form 32 Appointment of Additional/ Casual / Alternate Director Regularization of Additional Director in Annual General Meeting Appointment of Director in Extraordinary General Meeting Appointment of Director as MD/ WTD – file Form 32 as change in Designation Appointment of Director as Additional Director and Managing Director separately and regularization of Managing Director in AGM – File form 32 Separately for appointment as AD and MD and no form 32 is required for regularization
    • Filing of Form 32 No Director can sign form 32 unless his DIN 3 has been filed or he has been appointed after 1St July, 2007. A single form 32 can be filed for two or more appointment /cessation, if the interval between the same is not more than 30 days. The appointed Director cannot file his own form 32.
    • Change in Directorship
    • Change in Directorship-Resignation A non-executive Director can vacate his office by giving resignation to the Board of Directors , its acceptance by the Board is not necessary A executive Director can vacate his office subject to the terms and conditions of his appointment and in the absence of the same, he is required to submit his resignation to the Board of Director and acceptance of the same by the Board is must for their vacation
    • Change in Directorship-Removal The Company can remove any Director u/s 284 of the Act by passing an ordinary resolution in the general meeting . The provisions of section shall not apply to the: o Directors appointed by Central Government u/s 408 of the Act. o Directors appointed under section 265 of the Act. o In case of private company, Directors holding life on 1st April 1952.
    • Procedure-Removal Any shareholder intending to remove any Director, is required to give a special notice of the same. Hold a Board meeting to convene a general meeting of shareholders. On receipt of the notice as aforesaid, the Company shall forthwith send copy of the same to the Director concerned , to enable him to make the necessary representation. The copies of the representation, if any received from the Director must be sent to all the members either along with notice calling the meeting or independently.
    • Procedure-Removal Convene the general meeting In case the representation whether due to default or delay has not been sent to the members, the representation will be read out at the meeting. Pass the ordinary resolution for his removal. The vacancy created by his removal can filed: o At meeting in which he was removed , provided special notice of appointment has also been given o As causal vacancy u/s 262 of the Act. File form 32 within 30 days of his removal
    • Change in Directorship-Vacation Section 283 of the Act, prescribes following 12 grounds for automatic vacation of office of Director: o he fails to obtain within the time specified in sub-section(1) of section 270, or at any time thereafter ceases to hold, the share qualification if any, required of him by the articles of the company; o he is found to be of unsound mind by a Court of competent jurisdiction; o he applies to be adjudicated an insolvent; o he is adjudged an insolvent; o he is convicted by a Court of any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months;
    • Change in Directorship-Vacation If he e fails to pay any call in respect of shares of the company held by hill whether alone or jointly with others, within six months from !II last date fixed for the payment of the call [unless the Central Government has, by notification in the Official Gazette, removed !II disqualification incurred by such failure; he absents himself from three consecutive meetings of the Board a directors, or from all meetings of the Board for a continuous period of three months; whichever is longer, without obtaining leave d absence from the Board; he (whether by himself or by any person for his benefit or on his account), or any firm in which] he is a partner or any private company of which he is a director, accepts a loan, or any guarantee or security for a loan, from the company in contravention of section 295;
    • Change in Directorship-Vacation he acts in contravention of section 299; he becomes disqualified by an order of Court under section 203 he is removed in pursuance of section 284; having been appointed a director by virtue of his holding any of or other employment in the company or as a nominee of  of the company, he ceases to hold such office other employment in the company
    • Filing of Form 32Form 32 for cessation, can only be filed for Directors in respectof whom Form DIN 3 has been filed or he has been appointedafter 1st July 2007 and the appointment of Form 32 has beenfiled.
    • Filing of Form 32- Death of Director and has no DIN Please send an email to appl.helpdesk@mca.gov.in  furnishing following details under heading – Form 32 – death case, No DIN  a)   Name of the company (in which the individual was a director) b)    Name of the deceased Director c)    Date of birth d)    Date of appointment as Director e)    Date of filing of Form 32 for appointment f)     Date of death (along with certified copy of death certificate issued by competent authority) g)     e-mail address of the company Upon receipt of email, MCA Helpdesk will check and consider the information submitted and if found satisfactory, MCA Helpdesk will intimate the status/ outcome of the ticket to the stakeholder.   If MCA Helpdesk needs additional information from the stakeholder, he will send an email to the Company accordingly.  
    • Filing of Form 32- Death of Director andhas no DIN contd….. Upon receipt of approval email from MCA, stakeholder will be required to file the form directly with the concerned ROC along with - signed form 32, necessary attachments, and a copy of approval e-mail and proof of payment of filing fee, with the respective ROC office. Filing Fee will be paid through Pay Miscellaneous Fee option on MCA portal. ROC will process / approve the form, scan the physical form 32 along with its attachments and upload the same in the electronic records of the company through On Demand Scanning option. ROC will update the relevant records/ data of the company accordingly.
    • SECTION 25 COMPANIES
    • IntroductionNon-Profit Association is an organization– Formed as a limited Company for promoting Commerce, Art, Science, Religion, Charity. Apply its profits in promoting its objects. Prohibits payment of dividend to its members.
    • Regulatory Provision- Section 25 Registered as a limited Company with or without the addition of the word “Limited” or “Private Limited”. A license granted under this section may be revoked anytime by the Central Government & on such revocation the body shall cease to enjoy the exemption granted by this section. A company registered under this section could not alter its objects without the prior approval of Central Government. If the name of a body registered under this section contains the word “Chambers of Commerce” then upon revocation of license should change its name to a name which does not contain these words.
    • Formation Of Section 25 Companies A license may be granted to a body under this section if it satisfies all the three conditions as laid down in the definition. A company already registered under the act may be converted into a Section 25 company if it satisfies all the regulations laid down by the Central Government.
    • Procedure for Formation An application in Form 1A for name availability is required to be made ROC After the availability of name is confirmed by the ROC, an application to Regional Director in form 24A is required to be made along with following documents: o Three printed or typed copies of the draft memorandum and articles of association of the proposed Company; o A declaration by the advocate of the Supreme Court or of a High Court, an attorney or a pleader entitled to appear before a High Court, a secretary, or a chartered accountant, in whole-time practice in India that the memorandum and articles of association have been drawn up in conformity with the provisions of the Act and that all the requirements of the Act and the rules made thereunder have been duly complied with in respect of registration and matters incidental or supplementary thereto ;
    • Procedure for Formationo Three copies of a list of the names, descriptions, addresses and occupations of the promoters (and where a firm is a promoter, of each partner in the firm), as well as of the members of the proposed Board of directors, together with the name of companies, associations and other institutions in which such promoters, partners and members of the proposed Board of directors are directors or hold responsible positions, if any with descriptions of the positions so held ;o A statement showing in detail the assets (with the estimated values thereof) and the liabilities of the association, as on the date of the application or within seven days of that date ;o An estimate of the future annual income and expenditure of the proposed Company, specifying the sources of the income and the objects of the expenditure ;o A statement giving a brief description of the work, if any, already done by the association and of the work proposed to be done by it after registration in pursuance of section 25 ;
    • Procedure for Formationo A statement specifying briefly the grounds on which the application ismade ; ando A declaration by each of the persons making the application in theprescribed form to the Companies Regulations, or in a form as nearthereto as circumstances admit.o A fee of Rs. 100 by a demand draft drawn in favour of the ‘Pay andAccounts Officer’ should be sent along with the application or the feeshould be paid in the respective account of the Central Government inanyone of the specified branches of Punjab National Bank.o Furnish copy of the application to ROC along with necessary documents.o Publish a notice in as set out in annex II of the Companies Regulations ,in an English newspaper and in a vernacular newspaper circulating in thedistrict where the registered office of the Company will be located
    • Procedure for Formationo The ROC will scrutinize the draft memorandum and articles of association and other papers sent with the application in order to ensure that the documents conform to the various provisions of the Act and the rules. If any change should be made in the memorandum and articles of association, the ROC indicates them in his report to the regional director.o The regional director will decide, after considering the objections, if any, received within the time fixed therefore in the notice published in the newspapers, whether the licence should be granted under section 25.o While granting the licence, the regional director may direct the Company to insert in its memorandum or in its articles such conditions of the licence as may be specified by him.
    • Procedure for Formationo The license should be produced to the ROC. The Registrar will thereupon incorporate the Company. No stamp duty is payable for the memorandum of association of the Company. Likewise, no stamp duty is payable on the articles of association of this Company. The registration fee payable for registering the Company is Rs. 50 irrespective of its capital, if any. After examining all these documents, the ROC will incorporate the Company and issue the certificate of incorporation.
    • Key Points…….. The Memorandum & Article of Association shall not contain the following:  Any Commercial activity  Any clause relating to payment of salary to any Director apart from office bearers.
    • CHARGES
    • IntroductionCompanies generally borrow money by charging their properties. In order to protect the interest of creditors, particulars of the charge,together with a duly verified copy of instrument creating the charge arerequired to be filed with the Registrar of Companies for registration.The expression “charge” includes a mortgage.
    • Regulatory Provision-section 125  As per section 125 of the Act, following charges , if not registered shall becomes void against the liquidator: oCharge for the purpose of securing any issue of debentures. oCharge on uncalled Share Capital of the company oCharge on any immovable property or any interest therein. oCharge on book debts of the company. oCharge not being a pledge on any movable property of the Company. oa floating charge on the undertaking or any property of the Company including stock in trade. oCharge on calls made but not paid. oCharge on Ship or any share in a ship. oA charge on goodwill , on a patent or a licence under a patent, on a trademark, or on a copyright or a licence under a copyright.
    • Regulatory Provision-section 125The registration of charge shall be created within 30 days of its creationsubject to additional period of 30 days on payment of additional fees. TheCentral Government had vide circular no 13 of 2007 dated 27/09/2007 hasextended the period of registration of charge to 300 days but the saidcircular was withdrawn vide notification no 8/2/2007 CL-V dated01/07/2008
    • Procedure -Charge Registration Convene a Board meeting oto approve the instrument creating charge oTo authorize the Director to file form 8 with ROC Create form 8 and get the same digitally signed by the Director and Charge Holder and file the same. After registration of form 8 , the Certificate of Registration of charge will be dispatched at the Registered office After registration of form 8, the registered Charge will be allotted a Charge Identification Number.
    • Regulatory Provision-Section 135 Whenever the terms or conditions, or the extent or operation, of any charge registered under this Part are or is modified, it shall be the duty of the company to send to the Registrar the particulars of such modification, and the provisions of this Part as to registration of a charge shall apply to such modification of the charge.
    • Procedure -Charge Modification Convene a Board meeting oto approve the modification in the instrument creating charge oTo authorize the Director to file form 8 with ROC Create form 8 and get the same digitally signed by the Director and Charge Holder and file the same. After registration of form 8 , the Certificate of Registration of modification in charge will be dispatched at the Registered office
    • Key point……. In case of registration of charge , if the size of agreement is very large after scanning , file the same as addendum to the form 8 In case of modification of charges registered with ROC before the implementation of system, the form 8 for modification cannot filed unless their Charge Identification Number has not been created.
    • Regulatory Provision-Section 146 The company shall give intimation to the Registrar of the payment or satisfaction, in full, of any charge relating to the company and requiring registration under this Part, within "thirty days" from the date of such payment or satisfaction. The Registrar shall on receipt of such intimation, cause a notice be sent to the holder of the charge calling upon him to show cause within a time(not exceeding fourteen days) specified in such notice, why payment or satisfaction should not be recorded as intimated to the Registrar. If no cause is shown, the Registrar shall order that a memorandum of satisfaction shall be entered in the register of charges.
    • Procedure –Charge Satisfaction Convene a Board meeting oto take note of the satisfaction of charge oTo authorize the Director to file form 17 with ROC Create form 17 attach the NOC given by the charge holder and get the same digitally signed by the Director and Charge Holder and file the same. After registration of form 17 , the Certificate of Registration of satisfaction of charge will be dispatched at the Registered office