SHARE WARRANT AND SHARE CERTIFICATE

A. Share Warrants
A public company limited by shares may issue share warrants under its common seal in the following
circumstances :
(i) if it is authroised by its articles ;
(ii) shares are fully paid up ; and
(iii) previous approval of the Central Government is obtained.
A share warrant is a document which shows that the bearer of the warrant is entitled to the shares specified therein.
It is a substitute for the share certificate. A shares warrant may have coupons attached to it to provide for the
payment of future dividends on the shares specified in the warrant. A shares warrant shall entitle the bearer thereof
to the shares specified therein. The shares may be transferred by delivery of the warrant.
On issue of a share warrant, the company shall strike out of its register the name of the member then entered
therein as holding the shares specified in the warrant as if he had ceased to be a member. The following particulars
shall be entered in the register :
(i) the fact of the issue of the warrant ;
(ii) a statement of the shares specified in the warrant, distinguishing each share by its number ; and
(iii) the date of the issue of the warrant.
The bearer of a share warrant shall subject to the articles of the company be entitled to have his name entered as a
member in the register of members on surrendering the warrant for cancellation and paying such fee to the company
as the Board of Directors may from time to time determine.
The bearer of the share warrant may, if the articles of the company so provide, be deemed to be a member of the
company.

B. Share Certificate
The holder of share or shares is issued a share certificate by the company. A certificate under the common
seal of the company, signed by one or more of directors, specifying shares held by the member and the amount paid
up on the shares shall be prima facie evidence of the title of the member to such share or shares.
Every company shall deliver the certificates to the allottee within three months from the date of allotment
and to the transferee within two months of making of the application for the registration of the transfer of shares,
debentures or debenture stock.
If default is made, the company and every officer of the company who is in default, shall be punishable with
fine which may extend to Rs. 5,000/- for every day during which the default continues. The person may make an
application to the court if default is not made good by the company within 10 days after the service of the notice.
The court may order the company and any officer of the company to make good the default.

Objects and Advantages : Since a share certificate is prima facie evidence of title, a shareholder is able to show his title
to the shares by producing his share certificate. Thus it is very easy for a shareholder to sell his shares in the market
by producing a share certificate showing his title to these shares. Besides it would be very easy for a lender to lend
money to the shareholder taking the possession of his share certificate by way of security.

Duplicate Certificate
Section 84(2) provides that a company may renew or issue a duplicate certificate if it is proved to have been
lost or destroyed or having been defaced, mutilated or torn; is surrendered to the company. The articles may provide
other terms and conditions like requiring the allottee to give an indemnity bond (Clause 89 Table A).
If a company with the intent to defraud renews a certificate or issues a duplicate thereof, the company shall
be punishable with fine which may extend to Rs. 10,000 and every officer of the company who is in default shall be
punishable with imprisonment for a term which may extend to six months, or with fine which may extend to Rs.
10000 or with both [Sec.84(3)].
The Central Government may prescribe rules regarding the issue or renewal of certificates and duplicates,
fees, etc. (Sec. 84(4)). The rules so made override the provisions in the articles.

DIFFERENCE BETWEEN A SHARE CERTIFICATE AND A SHARE WARRANT

1. The holder of a share certificate is a registered member of the company whereas the bearer of a share
warrant is not. The bearer of a share warrant can be a member only when the Articles so provide and only for the
purposes defined in the Articles.
2. A share certificate may be issued in respect of partly or fully paid shares, whereas a share warrant can be
issued only when shares are fully paid up.
3. Only public companies are authorised to issue share warrants but share certificates are issued by both
public and private companies.
 4. A share warrant is transferable by delivery only and no transfer deed and registration of transfer with the
company is required. But a share certificate is transferred only in pursuance of a transfer deed along with the
delivery of the share certificate. The transfer of a share certificate must be registered with the company.
5. A share warrant is a negotiable instrument as it is transferable by delivery only. But a share certificate is
not a negotiable instrument.
6. Stamp duty is payable for the transfer of a share certificate but no stamp duty is payable in the case of
transfer of a share warrant.
7. The permission of the Central Government is not necessary for the issue of share certificates but share
warrants can be issued only if allowed by the Articles and with the prior permission of the Central Government.
8. The holder of a share warrant does not qualify to become a director of the company (where qualification
share are required for directorship). But the holder of a share certificate is so qualified.
9. The petition for the winding up of the company can be presented by the holders of share certificates only.
Holders of shares warrants cannot do so.
10. Payment of dividend on a share warrant is made by way of coupons attached with it. But in the case of
share certificates, the company issues dividend warrants to the holders by name.
Difference Between Partnership and Company

Basic of
Partnership Company
Difference

The formation of Company is lengthy and expensive.

It formation is easy and less expensive, partnership
Formation It forms under company ordinance 1984
form under partnership act 1932 (India, Pakistan)

A partnership has no separate legal entity. the acts Joint stock company has a separate legal entity
Legal Entity: of the firm bind the partners and the acts of separate from their shareholders. It may act in its
individual partners ordinarily bind the firm own right without making shareholders liable for it.

the liability of the partners is unlimited and they The liability of the shareholders of a company is
Liability are equally and separately liable for the debts of limited to the face value of the shares bought by
the firm. them.

The minimum number of partners is two and

Number of In a public company minimum number is seven
maximum number is not given according to
Members while there is no maximum limit.
Partnership act.

company has a constant and perpetual succession.

A partnership does not have stable life and The change of membership or death of insolvency of
Existence
perpetual existence the member does not affects its affairs and existence
of company.

The net profit is distributed among the partners The net profit distributed among the shareholders
Profit
according to agreed ration known as Dividend.

shareholders of a company enjoy freedom to transfer

Transfer of A partner can transfer his share only with the
their shares. But, there is some restriction in a
Shares consent of all partners.
private company.

Shareholder has no right to take part in the

Partners has right to take part in the management management and operations of the company. The
Management
and operation of the firm Company Elect Board of Directors, who manages the
company’s affairs.

It lacks stability and dissolved on admission, It stabile and no effect on company when
Stability
retirement and death of partner. shareholder got retirement or death.

The capital of a company is divided into shares.

In partnership, partners invest money according to Company has no right to issue shares more than the
Capital
their wish and the consent of other partners. authorized capital mentioned in its article of
association.

Changes in The partners can easily change the amount of To change the authorized capital of company took a
Capital capital, no legal work required lot of time and under go through legal process.

Final A partnership is not under statutory responsibility Final accounts of the company must be organized
Accounts and for the preparation of final accounts and audit the and distributed among the shareholders. It should be
Audit books of accounts. audited by a qualified auditor.

A partnership is dissolved according to the A company is dissolved only through legal

Dissolution
agreement among the partners or by the court. procedures.

The powers and objects of a company are set out in

The clauses of agreement deed of a partnership can
Objective and the Memorandum of Association .these can be
be altered with mutual consent of the partners as
Power altered only in accordance with the provisions of
and when they desire.
Companies ordinance
 a partnership, thought governed by the
statutory
partnership Act, is relatively free from statutory company right from its inception has to comply with
regulations
regulations. various and varied statutory regulation

Partnership is weak form of organization with

The joint stock company is more sound and durable
Conclusion uncertain existence. it is suitable for medium scale
and is suitable for doing business on large.
business operation.

Essential features of a Company-

A company as an entity has many distinct features which together make it a unique organization. The essential
characteristics of a company are following:

Separate Legal Entity: Under Incorporation law, a company becomes a separate legal entity as compared to its
members. The company is distinct and different from its members in law. It has its own seal and its own name, its
assets and liabilities are separate and distinct from those of its members. It is capable of owning property, incurring
debt, and borrowing money, employing people, having a bank account, entering into contracts and suing and being
sued separately.

Limited Liability: The liability of the members of the company is limited to contribution to the assets of the company
upto the face value of shares held by him. A member is liable to pay only the uncalled money due on shares held by
him. If the assets of the firm are not sufficient to pay the liabilities of the firm, the creditors can force the partners to
make good the deficit from their personal assets. This cannot be done in the case of a company once the members
have paid all their dues towards the shares held by them in the company.

Perpetual Succession: A company does not cease to exist unless it is specifically wound up or the task for which it was
formed has been completed. Membership of a company may keep on changing from time to time but that does not
affect life of the company. Insolvency or Death of member does not affect the existence of the company.

Separate Property: A company is a distinct legal entity. The company's property is its own. A member cannot claim
to be owner of the company's property during the existence of the company.

Transferability of Shares: Shares in a company are freely transferable, subject to certain conditions, such that no
share-holder is permanently or necessarily wedded to a company. When a member transfers his shares to another
person, the transferee steps into the shoes of the transferor and acquires all the rights of the transferor in respect of
those shares.

Common Seal: A company is an artificial person and does not have a physical presence. Thus, it acts through its
Board of Directors for carrying out its activities and entering into various agreements. Such contracts must be under
the seal of the company. The common seal is the official signature of the company. The name of the company must
be engraved on the common seal. Any document not bearing the seal of the company may not be accepted as
authentic and may not have any legal force.

Capacity to sue and being sued: A company can sue or be sued in its own name as distinct from its members.

Separate Management: A company is administered and managed by its managerial personnel i.e. the Board of
Directors. The shareholders are simply the holders of the shares in the company and need not be necessarily the
managers of the company.

One Share-One Vote: The principle of voting in a company is one share-one vote i.e. if a person has 10 shares, he has
10 votes in the company. This is in direct distinction to the voting principle of a co-operative society where the "One
Member - One Vote" principle applies i.e. irrespective of the number of shares held, one member has only one vote.

Different types of Company

 A company is an incorporated association of persons created by law to carry on the expressly laid down
objectives. A company exists on in the contemplation of law. It may be formed by an act of parliament, or by Royal
Charter or by registration under the company law. A company has perpetual existence i.e. the existence of a
company can only be terminated by law and not by the death, retirement, insanity of its members.
A company may be: (1) Statutory Company, or (2) Registered Company

Statutory Company
A company formed by a special Act passed either by the central or the state legislature is called a statutory
company. These companies are governed by the provisions of their special Acts. These companies are usually formed
to carry out some special public undertakings. The object such companies are not to as such earn profits but to serve
people. The audit of such companies is conducted under the supervision, control and guidance of the Comptroller and
Auditor General of India.
Some important statutory companies are Reserve Bank of India, State Bank of India, Life Insurance
Corporation of India, industrial Finance Corporation etc.

Registered Company
Company registered under the Indian Companies Act is known as Registered Company. These companies are
governed and regulated by the provisions of the Companies Act, 2013. They may be limited by shares or limited by
guarantee or unlimited companies.

KINDS OF COMPANIES ON THE BASIS OF LIABILITY OF MEMBERS

1. Company limited by shares: This is a company having the liability of its members limited by the
memorandum to the amount unpaid on the shares respectively held by them. A large majority of the companies
registered in India belong to this category. The last word of the name of such companies should be “Limited”. For
example, if AB Ltd. has a share capital of 10,000 shares of Rs. 0 each, and A has purchased 100 shares on which he
has paid so far Rs. 6 per share, the maximum liability of A is only Rs. 4 per share.

2. Company limited by Guarantee: This is a company in which the liability of each member is limited to such
amount as the members may voluntarily undertake under the memorandum to contribute to meet out the deficiency
of the assets of the company in the event of its being wound up. Such companies may or may not have share capital.
If it has share capital, the liability of the members becomes two-fold; firstly, the amount unpaid on the shares held
by them and secondly, amount payable under the guarantee.

3. Unlimited companies: a company not having any limit towards the liability of its members is an unlimited
company. The liability extends to the whole amount of the company’s debts and liabilities. The registered companies
(whether limited or unlimited) may be either private or public companies.

Private limited company

Private limited company is held by few individuals privately having separate legal entity. In this the shareholders
cannot trade shares publicly. Shareholders cannot sell their shares without the approval of other shareholders. It is a
company which restricts the right of its members to transfer its shares and it doesn’t send invitation to the public for
subscription of its shares.
Characteristics of the private limited company:
1. Members– To start a company, a minimum number of 2 members are required and a maximum number of
200 members as per the provisions of the Companies Act 2013.
2. Index of members– A private company has a privilege over the public company as they don’t have to keep
an index of its members whereas the public company is required to maintain an index of its members.
3. Exemptions regarding directors– When it comes to directors, a private company needs to have only two
directors. With the existence of 2 directors, a private company can come into operations. Also, private company need
not appoint independent directors. The maximum number of companies of which a person may be appointed as a
director is 20 in case of private company.
4. Paid up capital– It must have a minimum paid-up capital of Rs 1 lakh or such higher amount which may
be prescribed from time to time.
5. Prospectus– Prospectus is a detailed statement of the company affairs which is issued by a company for its
public. However in case of private limited company there is no such need to issue a prospectus because in this public
is not invited to subscribe for the shares of the company.
6. Name– It is mandatory for all the private companies to use the word private limited after its name.
In the case if any private limited company doesn’t follow any of the above mentioned features, it ceases to be private
company.
Public Company
A public limited company is a form of business organization that operates as a separate legal entity from its
owners. It is formed and owned by shareholders. Shares of a public limited company are listed and traded at a stock
exchange market freely.
Characteristics of a public company:
1. It must have a minimum of 7 members and no limit with regards to the maximum number of members.
2. The shares of a public company are freely transferable.
3. It can invite the public to subscribe to its shares or purchase its shares.
4. It must constitute an Audit Committee of the Board.

ONE PERSON COMPANY

This is a type of company that has only one member. OPC provides the benefits of both forms of business-
Proprietorship and Company. With formation of an OPC business can be run in the same way as a proprietorship by
complying with law and keeping the liability of the member limited by shares or guarantee.
Provisions of OPC under Companies Act 2013:
 All the provisions of the Act applicable to private companies shall also be applicable to OPC unless otherwise
excluded from compliance.
 It should be treated as a private company for all legal purposes.
 The name of the company shall include the words ‘One Person Company’ within brackets below the name of
the company.
 The person forming an OPC has to nominate a person with that person’s written consent as a nominee of the
OPC.
 It should have a maximum of 15 directors, and they aren’t required to retire by rotation.

HOLDING AND SUBSIDIARY COMPANY

A company which controls another company is called a Holding Company and the company so controlled is
called a Subsidiary Company.
A company shall be deemed to control another company in the following cases-
1. If it controls the majority composition of the board of directors of another company.
2. If it exercises or controls more than one-half of the total share capital either at its own or together with one
or more of its subsidiary companies.
3. If another company is a subsidiary of the first mentioned company’s subsidiary (i.e. subsidiary of the
subsidiary)

ASSOCIATE COMPANY
“Associate Company” as in relation to another company, means a company in which that other company has
a significant influence, but which is not a subsidiary company of the company having such influence and includes a
Joint Venture Company. “Significant Influence” means control of at least 20% of total share capital but less than
50% of share capital by another company, or control of business decisions under an agreement.

SMALL COMPANY
Small company means a company, other than a public company, whose-
1. Paid-up share capital doesn’t exceed Rs. 50 lakhs or such higher amount as may be prescribed.
2. Turnover of which as per its last P&L A/C doesn’t exceed Rs. 2 crore or such higher amount as may be
prescribed.
However, a small company cannot be-
 A holding or a subsidiary company
 A company registered under section 8 of the 2013 Act.
 A company or body corporate governed under any special Act.
Exemptions of a small company:
 Financial statements may not include the cash flow statement.
 The annual return shall be filed by director and company secretary or when there is no company secretary,
by two directors.
 It is sufficient if at least one meeting of the Board of Directors has been conducted in each half of a calendar
year.

GOVERNMENT COMPANY
 A Government company means, any company in which not less than fifty one percent of the share capital is
held by the-
 Central Government, or
 Any State Government, or
 Partly by the Central Government and partly by one or more State Governments.
It also includes a company which is a subsidiary of a Government company.
Special provisions:
(a) The auditor of a Government Company shall be appointed or reappointed by the Central Government on the
advice of the Comptroller and Auditor General of India. The Auditor General will have the power to direct the
company’s auditor relating to the manner of audit and the performance of his duties. He shall also have the power to
conduct a supplementary test audit of the company’s account by persons appointed by him; and the auditor is
required to submit a copy of his audit report to the Comptroller and Auditor General, who shall have the right to
comment upon the report.
(b) Where the Central Government is a member of a Government Company, the Central Government shall prepare
an annual report on the working and affairs of the company within three months of its annual general meeting before
which the audit report is placed. The annual report is to be laid before both houses of Parliament together with a
copy of the audit report

FOREIGN COMPANY
Foreign company is a company incorporated outside India which-
 Has a place of business in India whether by itself or through an agent, physically or through electronic mode.
 Conducts any business activity in India in any other manner.

PRODUCER COMPANY
It means a body corporate having objects or activities specified in section 581B and deals primarily with the
produce of its active Members for carrying out any of its specified objects.
The objects of producer companies shall include one or more of the eleven items specified in the Act, the more
important being:
 Production, harvesting, procurement, grading, pooling, handling, marketing, selling, export of primary
produce of members or import of goods or services for their benefit;
 Processing including preserving, drying, distilling, brewing, venting, canning and packaging of produce of its
members; and
 Manufacture, sale or supply of machinery, equipment or consumables mainly to its members.
 rendering technical or consultancy services,
 generation, transmission and distribution of power and revitalization of land and water resources;
 promoting techniques of mutuality and mutual assistance;
 Welfare measures and providing education on mutual assistance principles.

DORMANT COMPANY
Where a company is formed and registered under this Act for a future project or to hold an asset or
intellectual property and has no significant accounting transaction, such a company or an inactive company may
make an application to the Registrar in such manner as may be prescribed for obtaining the status of a dormant
company.
Inactive company means a company which has not been carrying on any business or operation, or has not
made any significant accounting transaction during the last two financial years, or has not filed financial statements
and annual returns during the last two financial years.
How and by whom Registrar of a company is appointed. Its functions

Functions of the Registrar of Companies

 Section 77(2) – Issue certificate of registration of charge without which the charge cannot be taken into
account by liquidators or creditors
 Section 78 – The Registrar gives a notice to the company in order to enable it to inform whether the company
has itself created a charge and if it has not, then inform about the reason for the same
 Section 81 – Registrar is required to keep the register of charges in respect of every company
 Section 93 – Return is to be filed with Registrar in case promoters’ stake changes
 Section 137 – Copy of Financial Statement to be filed with the Registrar
 Section 157 – Company to inform the Registrar of the Identification Number
 Section 208 – After inspection and inquiry, the Registrar is required to submit a report in writing to the
Central Government
1.The ROC takes care of registration of a company (also referred to as incorporation of the company) in the
country.
2. It completes regulation and reporting of companies and their shareholders and directors and also administers
government reporting of several matters which includes the annual filing of numerous documents.
3. The Registrar of Companies plays an essential role in fostering and facilitating business culture.
4. Every company in the country requires the approval of the ROC to come into existence. The ROC provides
incorporation certificate which is the conclusive evidence of the existence of any company. A company, once
incorporated, cannot cease unless the name of the company is struck-off from the register of companies.
5. Among other functions, it is worthy to note that the Registrar of Companies could also ask for supplementary
information from any company. It could search its premises and seize the books of accounts with the prior approval of
the court.
6. Most importantly, the Registrar of Companies could also file a petition for winding up of a company.

Doctrine of indoor management and its exceptions

While the doctrine of ‘constructive notice” seeks to protect the company against the outsiders, the principal
of indoor management operates to protect the outsiders against the company.
According to this doctrine, as laid down in Royal British Bank v. Turquand, (1856) 119 E.R. 886, persons
dealing with a company having satisfied themselves that the proposed transaction is not in its nature inconsistent
with the memorandum and articles, are not bound to inquire the regularity of any internal proceedings. In other
words, while persons contracting with a company are presumed to know the provisions of the contents of the
memorandum and articles, they are entitled to assume that the provisions of the articles have been observed by the
officers of the company. It is no part of the duty of an outsider to see that the company carries out its own internal
regulations.
In Royal British Bank v. Turquand, the directors of a banking company were authorised by the articles to
borrow on bonds such sums of money as should from time to time, by resolution of the company in general meeting,
be authorised to borrow. The directors gave a bond to Turquand without the authority of any such resolution. It was
held that Turquand could sue the company on the strength of the bond, as he was entitled to assume that the
necessary resolution had been passed. Lord Hatherly observed : “Outsiders are bound to know the external position
of the company, but are not bound to know its indoor management”.

Exceptions to the doctrine of indoor management

The above noted ‘doctrine of indoor management’ is, however, subject to certain exceptions. In other words, relief on
the ground of ‘indoor management’ cannot be claimed by an outsider dealing with the company in the following
circumstances.
1. Where the outsider had knowledge of irregularity — The rule does not protect any person who has actual
or even an implied notice of the lack of authority of the person acting on behalf of the company. Thus, a person
knowing full well that the directors do not have the authority to make the transaction but still enters into it, cannot
seek protection under the rule of indoor management. In Howard v. Patent Ivory Co. (38 Ch. D 156), the articles of a
company empowered the directors to borrow upto one thousand pounds only. They could, however, exceed the limit
of one thousand pounds with the consent of the company in general meeting. Without such consent having been
obtained, they borrowed 3,500 pounds from one of the directors who took debentures. The company refused to pay
the amount. Held that, the debentures were good to the extent of one thousand pounds only because the director had
notice or was deemed to have the notice of the internal irregularity.

2. No knowledge of memorandum and articles — Again, the rule cannot be invoked in favour of a person
who did not consult the memorandum and articles and thus did not rely on them. In Rama Corporation v. Proved
Tin & General Investment Co. (1952) 1All. ER 554, T was a director in the company. He, purporting to act on behalf
of the company, entered into a contract with the Rama Corporation and took a cheque from the latter. The articles
of the company did provide that the directors could delegate their powers to one of them. But Rama Corporation
people had never read the articles. Later, it was found that the directors of the company did not delegate their
powers to T. The Plaintiff relied on the rule of indoor management. Held, they could not because they even did not
know that power could be delegated.

3. Forgery — The rule of indoor management does not extend to transactions involving forgery or to
transactions which are otherwise void or illegal ab initio. In the case of forgery it is not that there is absence of free
consent but there is no consent at all. The person whose signatures have been forged is not even aware of the
transaction and the question of his consent being free or otherwise does not arise. Consequently, it is not that the title
of the person is defective but there is no title at all. Therefore, howsoever clever the forgery might have been, the
personates acquire no rights at all. Thus, where the secretary of a company forged signatures of two of the directors
required under the articles on a share certificate and issued certificate without authority, the applicants were refused
registration as members of the company. The certificate was held to be nullity and the holder of the certificate was
not allowed to take advantage of the doctrine of indoor management [Rouben v. Great Fingal Consolidated (1906)
AC 439].
Forgery, in the case of a company, can take different forms. It may, besides forgery of the signatures of the
authorised officials, include the execution of a document towards the personal discharge of an official’s liability
instead of the liability of the company. Thus, a bill of exchange signed by the manager of a company with his own
signature under words stating that he signed on behalf of the company, was held to be forgery when the bill was
drawn in favour of a payee to whom the manager was personally indebted [Kreditbank Cassel v. Schenkers Ltd.
(1927) 1 KB 826]. The bill in this case was held to be forged because it purported to be a different document from
what it was in fact; it purported to be issued on behalf of the company in payment of its debt when in fact it was
issued in payment of the manager’s own debt.

4. Negligence — The ‘doctrine of indoor management’, in no way, rewards those who behave negligently.
Thus, where an officer of a company does something which shall not ordinarily be within his powers, the person
dealing with him must make proper enquiries and satisfy himself as to the officer’s authority. If he fails to make an
enquiry, he is estopped from relying on the Rule. In the case of Underwood v. Benkof Liverpool (1924) 1 KB 775, a
person who was a sole director and principal shareholder of a company deposited into his own account cheques drawn
in favour of the company. Held, that, the bank should have made inquiries as to the power of the director. The bank
was put upon an enquiry and was accordingly not entitled to rely upon the ostensible authority of director.
Similarly, in the case of Anand Behari Lal v. Dinshaw & Co. (Bankers) Ltd. AIR 1942 Oudh 417, an
accountant of a company transferred some property of a company in favour of Anand Behari. On an action brought
by him for breach of contract, the Court held the transfer to be void. It was observed that the power of transferring
immovable property of the company could not be considered within the apparent authority of an accountant.

5. Again, the doctrine of indoor management does not apply where the question is in regard to the very
existence of an agency. In Varkey Souriar v. Keraleeya Banking Co. Ltd. (1957) 27 Com Cases 591 (Ker.), the Kerala
High Court held that the ‘doctrine of indoor management’ cannot apply where the question is not one as to scope of
the power exercised by an apparent agent of a company but is with regard to the very existence of the agency.
 6. This Doctrine is also not applicable where a pre-condition is required to be fulfilled before company itself
can exercise a particular power. In other words, the act done is not merely ultra vires the directors/officers but ultra
vires the company itself — Pacific Coast Coal Mines v. Arbuthnot (1917) AC 607.

In the end, it is worthwhile to mention that section 6 of the Companies Act, 2013 gives overriding force and
effect to the provisions of the Act, notwithstanding anything to the contrary contained in the memorandum or
articles of a company or in any agreement executed by it or for that matter in any resolution of the company in
general meeting or of its board of directors. A provision contained in the memorandum, articles, agreement or
resolution to the extent to which it is repugnant to the provisions of the Act, will be regarded as void.
A corporation, organization or other entity set up to provide a legal shield for the person actually controlling
the operation.

Prospectus meaning and Characteristics. What is the liabilities for making untrue statement in prospectus.
Section 2(70) of the Companies Act, 2013 defines a prospectus as “any document described or issued as a
prospectus and includes a red herring prospectus referred to in section 32 or shelf prospectus referred to in section 31
or any notice, circular, advertisement or other document inviting offers from the public for the subscription or
purchase of any securities of a body corporate.”
On the basis of aforesaid definition, it may be said that a document should have following ingredients to
constitute a prospectus:
(a) There must be an invitation to the public;
(b) The invitation must be made “by or on behalf of the company or in relation to an intended
company”;
(c) The invitation must be “to subscribe or purchase”;
(d) The invitation must relate to any securities of the company

Now we discuss about those person who will be liable for giving damages, which have been given because of
misstatements:
1. Every person, who is the Director of the company at the time of issue of prospectus, would be liable for
misstatement.
2. Every person who introduce to himself in the prospectus as a director or as a futuristic director, are liable for
misstatement.
3. Every person, who plays the role of promoter of company.
4. Who authorised the prospectus for issuing of shares.
5. An expert, who gives their expert advice on any matter of prospectus, is liable for misstatement. However, he will
liable only for that statement, which is consider after taking his advice.

Penalty and Fine:

Any individual, who is liable for untrue statement in prospectus, if he does not mention the salient features of
prospectus, is liable for Rs. 50000 fine. Fine could be extended under general law or other provisions.
Any other individual, who plays the role of an expert and who has participated in formation or promotion of
prospectus, is liable for penalty which is Rs. 50000.
Any person, who participate in making a statement, forecast or promise, which is untrue and trying to fraud
with shareholders by enter into (a) any contract for subscribing, underwriting, acquiring or disposing of any
debenture or shares (b) any contract, which have a purpose to pretend the profit securely of any parties, are
punishable fine with imprisonment of 5 years and the amount of fine is Rs. 1 Lakh, which may extend under the
lawful provision

Civil Liability:
Civil Liability has enforced in against defaulter, who default with investors or shareholders. According to
section 62 of the companies act, 1956, company has to pay compensation to investors on against their loss or
damages, which incurred by unlawful statement in prospectus. The amount of damages is the difference between
actual or market value of shares and amount, which is published in prospectus.
The limitation period for suing on defaulter party is 3 years as per Article 113 of limitation act, 1963.

Criminal Liability:
According to section 63, the criminal liability has arisen on against defaulter for unlawful statement in
prospectus. They are punishable with an imprisonment, which may extend to 2 years or with fine, which may extend
to Rs. 50000 or with both.