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According to Section 3(1) of companies Act, 1956 Company means a company formed and registered under this Act or an existing company. It has separate legal entity. It has a perpetual succession. Members of a company has a limited liability. Company is an artificial person.


Means looking behind the company as a legal person, i.e. disregarding the

corporate entity and paying regard, instead, to the realities behind the legal faade. Salomon vs. Salomon & Co. Ltd.


Company limited by shares: When the liability of the members of company is limited by its memorandum of association to the amount (if any) unpaid on the shares held by them. Company limited by guarantee: Company having the liability of members limited by the stipulated sum mentioned in the memorandum. Similarities and dis-similarities betweeen both of them. Non-profit making companies Unlimited company


Appointment of directors Commencement of business Increase in number of Directors Directors consent Filing of returns, etc. Minimum number of members Maximum number of members Managerial Remuneration Prospectus Public Deposits Paid up Capital Quorum for general meeting Statement in Lieu of prospectus Retirement of directors Statutory meeting and statutory report Transferability of shares


 Special Resolution  Prospectus  Paid up capital to minimum 5 lakhs, increasing number of shareholders to 15 and directors to 3.


Passing of a special resolution: Sec 3(1) (iii) Changing the name of the company Obtaining the approval of Central Government Filing of printed copy.

Lawful Purpose Applying for name Preparation of Memorandum and Articles of Association Preparation of other documents - Power of Attorney - Consent of Directors: Section 266, Consent in Form No.29 - Particulars of Directors: Form No. 22 - Notice of registered address: Section 146 - Statutory Declaration- Section 33(2) and should be in Form No.1 - Filing of documents for Registration - Certificate of Incorporation- Section 35

} Definition: According to sec. 2(28) of the Companies Act, memorandum of association means the memorandum of association of a company as originally framed or as altered from time to time.

} To enable the prospective investors to know the purpose for which their money will be used and risk involved in investment.


}Name clause. }Registered office clause. }Objects clause. }Liability clause. }Capital clause. }Association or subscription clause.

Articles of Association

} The articles of association of a company are its bye- laws or rules and regulations that govern the management of its internal affairs and the conduct of its business. } The articles regulate the internal management of the company. } Articles are like the partnership deed in a partnership.

Contents of Articles
} Calls on shares } Lien on shares } Forfeiture of shares } Alteration of capital } Number and value of shares } Allotment of shares } Share certificate } Meetings

} Borrowing powers } Dividends and reserves } Winding up } Accounts and audit } Voting rights and proxies } Directors, their appointment, etc } Transfer and transmission of shares } Conversion of shares into stock } Adoption of preliminary contracts.

Form of Articles

} Company Limited by shares (sec.28) Adopt Table A of Schedule 1 in full, Own Articles to the exclusion of Table A, Own Articles and adopt Table A in part. } Company Limited by guarantee and not having share capital(sec.29) Own Articles in a form as in Table C.

} Company Limited by guarantee and having share capital (sec.29) Own Articles in a form as in Table D. } Company with unlimited liability (sec.29)- Own Articles in a form as in Table E.

Alteration of Articles

} Power to alter the articles is vested with the Company Sec.31. A company cannot divest itself of the power to alter articles. } Alteration is to be effected by special resolution passed by the shareholders.

Limitation on power to alter articles

} Must not increase the liability of members. } Must not result in expulsion of a member. } Must not be illegal or against public policy. } Irregular alteration acted upon for many years is binding on the company. } Must not conflict with the Memorandum and must not exceed the power given by it.

} Approval of central government is to be obtained if alteration has the effect of converting a public company into a private company. } Alteration may be made with retrospective effect so long as it does not alter things already done by the company. } Must not be inconsistent with the act or with an order of the court.

Difference Between
Memorandum of Association
} It is a primary document. } It is subordinate to the Act. } It is the Charter of the Company and defines the fundamental conditions and objects. } For alteration, in certain cases, NCLT approval is required. } It is a secondary document. } It is subordinate to Memorandum and the Act. } It contains regulations. the rules &

Articles of Association

} For alteration, the approval of the members is required.

} It defines the relation between the company and outsiders. } Acts which are ultra-vires the Memorandum cannot be ratified by the members. } Every company must have its own Memorandum.

} It defines the relation between the Company and members. } Acts ultra-vires the Articles can be ratified by the members. } A public Company limited by shares need not have articles of its own. In such a case, Table A applies.


} Contracts before incorporation } Legal position of preliminary contracts THE SPECIFIC RELIEF ACT, 1963 1. 2. Before After


} No legal existence } Company cannot sue } Ratification not possible


} Relief for promoters } Purpose of the company } If warranted by terms , can be enforced.

} Cannot be sued a) even if it has existence b) expenditure incurred c) preliminary contracts } Personally liable unless agreement provides: a) if adopts b)party cancels if not accepted within specified time. } SEC 15 & 16 can be enforced if warranted by terms.

Preliminary and provisional contracts

meaning Before the formation of the Contract entered after company incorporation before entitled to commence business Only after certificate of commencement of business

Enforcement of Nor company can sue or it contract can be sued.

Contracts related

Property desired by promoters to purchase or persons whose know how is vital for success Public and private company

It is not with provisional contracts

Applicable for

Only for public company


Who are they ? How does companies act describes the nature of promoter ? Duties ? Liabilities ?

Who are They

The first step towards the formation of a company starts with efforts of its promoters. This nomenclature has its own significant importance. It occurs frequently in the Companies Act, 1956, but the irony is that this word has not been defined by the act.

Section 62(6)(a) of the act describes the nature of the promoter as one who was a party to the preparation of the prospectus or of a portion thereof containing an untrue statement, but does not include any person by reason of his acting in a professional capacity in procuring the formation of a company.

Describing Promoters

The Companies Act contains no provision which states the duties of the promoters, but cultural notions and legal trends have enumerated certain duties: Initiator Fiduciary agent

Initiator The promoter originates the scheme for the formation of a company, he gets memoranda and articles prepared, executed and registered and he deals with merchant bankers, brokers and legal advisors.

Fiduciary agent Promoters stand as a fiduciary agent of a company. As a fiduciary agent, the following duties are done in his name: (i) He should make all disclosures regarding accounts and formation so as to maintain transparency at the time of transfer of management to the director. (ii) He should not make any secret profit out of the promotion of the company. (iii) He should make all disclosures regarding transactions entered by him on behalf of the company as promoter.

Liabilities of promoters Section 56 and Schedule II. These sections require that the promoter state all the contents of a prospectus, such as general information; capital structure of the company; terms and conditions of the present issue; company management and its projects; and financial information such as reports of editors, accountants, and the underwriting commission brokerage. The liability of the promoter arises only with respect to original allotments of shares and would not extend to any further allottees.

Civil Liabilities (Section 62). Criminal liabilities (Section 63). Section 478. Section 542. Pre-incorporation contracts.


A prospectus as per Section 2(36), means any document described or issued as prospectus and includes any notice, circular, advertisement or other document inviting deposits from the public or inviting offers from the public for the subscription or purchase of any shares or debentures of a body corporate . Thus, a prospectus is not merely an advertisement; it may be a circular or even a notice. A document shall be called a prospectus if it satisfies two things : }It invites subscription to shares or debentures or invites deposits. }The aforesaid invitation is made for the public.

Prospectus to be dated..

} Section 55 specifies that every prospectus has to be dated .The date of publication of prospectus should be differentiated from the date of its issue. While the date which appears on the prospectus is the date of publication , the date of issue is the date on which the prospectus first appears as an advertisement.

Registration of the Prospectus

No prospectus can be issued unless it is registered with registrar. Following documents must be attached to the copy of prospectus filed with Registrar : 1. The consent of the expert whose report is to be published in the prospectus. 2. A copy of every contract relating to the appointment and remuneration of a managing director or manager. 3. A written statement relating to the adjustments, if any, in respect of figures of any profits or losses. 4. Consent in writing of the person named in the prospectus as an auditor, legal advisor, attorney, solicitor, banker, representative of the issue house to act in that capacity. 5. A copy of the underwriting agreement, if any, should also be filed as required by Section 76.

Matters to be stated in the prospectus

Section 56 of the Act lays down that every prospectus issued by the company shall conform to the requirements of schedule II. As per schedule, Part I shall disclose matters specified therein and Part II shall set out certain reports. Matters stated in the prospectus are : 1. General Information  The name and address of registered office of the company.  Names of stock exchange where listing applications have been made for issue.  Date of opening and closing of the issue.  Names and addresses of auditors and lead managers.  Names and addresses of trustees of the debenture trust deed, in case of issue of debentures.

2. Capital structure of the Company } Authorized, issued, subscribed and paid-up capital. } Size of present issue giving separately reservation for preferential allotment to promoters and other Paid-up capital } After the present issue } After conversion of debentures (if applicable).

Allotment of Shares

Allotment of Shares

} Prospectus Application - Allotment } Allotment - Acceptance to an offer for purchase of shares. } Valid Allotment - Some Requirements

Copy of prospectus - Registrar of Companies.

2. Application money Not less than 5% nominal value 3. Minimum subscription - Received 4. Application money - Scheduled Bank till minimum subscription 5. Shares listed stock exchange(s) mentioned in the Prospectus

 Allotment of Securities } As per Listing Agreement complete allotment of securities offered to the public within 30 days of the date of closure of the subscription list and approach the Regional Stock Exchange, i.e. Stock Exchange nearest to its Registered Office for approval of the basis of allotment.

 Trading Permission } As per SEBI Guidelines, the issuer company should complete the formalities for trading at all the Stock Exchanges where the securities are to be listed within 7 working days of finalization of Basis of Allotment } Company - Dispatch the Share certificate/Allotment letter and Refund Letter/Money to the applicant within a limited time

How the company does Allotment?

Normal Subscription Under Subscription

Over Subscription
Pro rata allotment Some Full Proportion Combination

Authorised Share Capital Issued Capital Subscribed Capital Called Up Capital Paid Up Capital Reserve Capital (Companies Limited with Guarantee)


} Equity Shares: - with voting rights, or - with differential rights } Preference Shares: - Carries preferential right in dividend - Preferential right in repayment winding up. during


} On basis of Participation - Participating Pref. Shares - Non Participating Pref. Shares } On basis of Accumulation: - Cumulative Pref. Shares - Non-Cumulative Pref. Shares } On basis of Redemption: - Redeemable Pref. Shares - Irredeemable Pref. Shares } On the basis of Conversion: - Convertible Pref. Shares - Non- Convertible Pref. Shares

} Issue At Premium: - Equity shares of Rs100 each issued at Rs125. - Premium = Rs 25 - Decided by the Board - Cash or Kind } Issue At Discount: - Equity shares of Rs 100 Each issued at Rs 90. - Discount = Rs 10. - Resolution at a General Meeting which should be confirmed by Central Govt. - Rate of Discount cannot exceed 10% or such higher percentage as permitted by Central Government.

Share Certificate and Share Warrant

Share Certificate
} A Share certificate is a prima facie evidence of the shares held - number and paid up value. } Implication of share certificate
} Estoppel as to the title } Estoppel as to payment

} Time [Sec.113] The company shall deliver share certificates

} Within 3 months of the allotment of shares } Within 2 months after the application for registration of the transfer of any such shares

} Default } Duplicate Share Certificate

Share Warrant

} Meaning(Sec. 114)
} It is a document issued under the common seal of a Public Company stating that its holder is entitled to shares specified therein.

} Features:
} Bearer document, transferable } Registration of transfer not necessary } Bearer need not to be member of company

} Condition for issue } Entries in Register of Member: Sec.115

Is holder a member?

Share Certificate

Share Warrant

Provision in Article Approval of central Government Who can issue?

Not Necessary


Not necessary Private and Public limited company For fully and partly paid up share Execution of transfer deed and delivery

Necessary Public limited company Fully paid up share

When can be issued?


By delivery


Share Certificate
Not Negotiable

Share Warrant

Eligibility as qualification share for director Right to present petition for winding up


Not Eligible


Doesnt Possesses

Stamp duty on transfer


Not Payable

Stamp duty at the time of issue


Very high

Payment of dividend

Paid to holder by issue of Dividend Warrant

Present coupon and collect dividend

} Calls } Forfeiture of share } Surrender of share } Impersonation(Sec.116)



 Meaning of Transfer and Transmission :  The word 'transfer' is an act of the parties by which title to property is transferred from one person to another.  The word 'transmission' is referable to devaluation of title by operation of law. It may be by succession or by testamentary transfer.


 Share transfer form presented to the Registrar of Companies  Not registered until a proper Instrument of transfer Duly stamped and executed  The instrument of transfer of shares should bear the requisite stamps and the adhesive stamps should be cancelled at the time of affixation of such stamps and execution of the document

 Time of Stamping the Transfer-Deed : 1. 2. Prafulla kumar Rout V Orient Engg Works Ltd Mathrubhumi Printing & Publishing Co. Ltd v Vardhaman Publishers Ltd

 Lodging the Transfer 1. 2. In the case of shares dealt in or quoted on a recognized stock exchange In any other case

 Transfer of shares Held in joint shares 1. Shanta G.Pommeret V sakel Papers (P) Ltd

Transfer When Complete?

 Notice of Refusal 1. Dipak Kumar Jayantilal Shah V The Atul products Ltd  Appeal against Refusal  Applicability of Section 111 to Private Companies  Remedies against refusal of registration of transfer in case of Public Companies 1. Shapoorji pallonji Finance Ltd V Mideast Ltd

 A transmission of shares is other interest in a company of a deceased member thereof made by the legal representative of a deceased member of the company shall be considered as transmission of shares by operation of law and will be registered by a company  Transmission of shares takes place : a. b. c. When the registered shareholder dies When he is adjudicated an insolvent If the shareholder is a company, it goes into liquidation


 There are two alternatives open to the legal representative : 1. Get himself registered as the member 2. Transfer the shares to some other person  Secretarial Duties in Connection with the Transmission of Shares : 1. 2. 3. To check up that the 'Letter of Request See the 'Letter of Probate' Incase of Transfer of shares, attach a Probate with the instrument of transfer

Nomination of Shares and Debentures

 Sections 109A and 109B have introduced through the Companies Act, 1999 providing for nomination facility with respect to shares and debentures  Facility can be availed of even in case of joint holdings  Nomination will hold good against any legal successor  The nominee shall have the right:  (i) to be registered as a holder of shares or debentures (ii) to transfer the same.  Rights of Nominee Holder


TRANSMISSION OF SHARES 1.By the operation of law 2.Requires an evidence showing the legal entitlement 3.There is no question of consideration 4.Stamp duty is not payable

TRANSFERS OF SHARES 1. By a deliberate act. 2.Requires the execution of formal instrument of transfer 3.There must be adequate consideration 4.Stamp duty is payable


 Shareholder signs a Share Transfer Form without filling in the name of the transferee and the date of execution and hands it over along with the share certificate  Advantages of Blank Transfer 1. 2. Convenience Saving in Stamp Duty


 When a instrument of transfer bears a forged signature of the rightful owner  Features 1. 2. 3. 4. Partial dematerialization of securities Securities will be fungible It would become freely transferable No stamp duty

What is Forfeiture of Shares?

Meaning: Forfeiture means termination of membership as a sort of penalty for the nonpayment of calls on the due date.

Procedures regarding forfeiture of shares

} Provision in the Articles of Association } Preparing the list of defaulters } Board Meeting and Resolution by Directors } Issue of Warning Letter } Board Meeting for resolution on forfeiture } Notice of the forfeiture } Removal of names from the register of members

BONUS SHARES(Sec 205(3))

What do Bonus Share Mean? Does Bonus Share only mean increase in No. Of Shares? REQUIREMENTS TO ISSUE BONUS SHARE: -Resolution Should be Passed In a General Meeting. -Copy Of Proceedings to the Stock Exchanges -Fixation of the date of closure of Members Register -List of Members entitled to Bonus Shares -Bonus Shares Certificates alloted and printed (Stock Exchange will not come into picture if the Bonus Shares are issued by unlisted Company)

On Amounts Devolving on Underwriters 2.5% On Amounts Subscribed by The Public 2.5%

Equity Shares

} What Does Underwriting Mean? }

Preference Shares/Convertible &Non Convertible Debentures. a) For Amounts upto Rs 500000 Underwriting Commission b) For Amounts in excess of Rs 500000


2% 1%


} Companies not allowed to purchase own shares - Company Limited by Shares - Guarantee Company Having Share Capital } Exception to the Rule: - Redemption By a Company of its Redeemable Preference shares - Company may buy its own shares from any member in pursuance of CLB. - Reduction of Share Capital accordance with provision of Sec 100-104


} Sources of Funds for Buy back: a)Free Reserves b)Securities Premium Account c)Proceeds of any shares or other specified securities


} Conditions To be Satisfied: a)Authorized by Articles b)Special Resolution in a General Meeting c)Debt Equity Ratio equal or less than 2 d)12 Months From passing of Special Resolution e)Quantum: 25% of paid up capital outstanding f)Amount:25% of Equity Share & Free Reserves g)Restriction: No further issue of same kind shares shall be made for the next 6 Months.

Registration Of Charge ( Sec 125 )

A company having power to borrow money is empowered also to charge its assets , subject however to any limitations in its Memorandum or Articles.

What is charge?
A charge means an interest or right which a lender or creditor obtains in the property of the company by way of security that the company will pay back the debt.

Types Of Charges

Fixed Charge : } Such a charge is against a specific clearly identifiable and defined property. } The property under charge is identified at the time of creation of charge. } The nature and identity of the property does not change during the existence of the charge. } The company can transfer the property charged only subject to that charge so that the charge holder or mortgage must be paid first whatever is due to him before disposing off that property.

Floating Charge :

} Such a charge is available only to companies as borrower. } A Floating charge does attach to any definite property but covers the property of a circulating and fluctuating nature such as stock-in-trade, debtors, etc. } It attaches to the property charged in the varying conditions in which happens to be from time to time. } Such a charge remains dormant until the undertaking charge ceases to be a going concern or until the person in whose favor charge created takes steps to crystallize the floating charge. } A floating charge on crystallization becomes a fixed charge.

Effect of Non Registration of Charge

} The particulars of a charge with verified copies of the documents have to be filed with the registrar of companies within 30 days from the date of creation of charge. } The effect of failure to register within the stipulated period, is that the charge will be void against the liquidator. In such case the debt becomes unsecured and repayable immediately.

Modification of charges

} The following changes in terms and conditions constitute to modification of charge } Variation in rate of interest (if RBI then its not necessary) } Extension of Existing securities } Increase or decrease in the limits } These modifications should also filed within 30 days.

Meetings as per companies Act 1956

 Intro  Classification  Meeting of shareholders  Statutory meeting  AGM (Annual General Meeting)  EGM (Extra Ordinary Meeting)  Notice  Proxy  Quorum

Appointment of auditors are explained under Sec 224 of the companies act 1956. First Auditors   BOD- within 1 month from the date of registration- resolution If board fails then the meeting- general meeting sec 224(5)

Subsequent Auditors Sec 224(1)- AGM to AGM  Registrat-30 days of intimation from the company  acceptance in 7 days Appointment by central govt  If no auditors appointed or reappointed central govt fills the vacancy sec 224(3)


An auditor may be reappointed at AGM under sec 224(2) except :  When he is not qualified for reappointment  He has notified in writing his unwillingness to be reappointed  Resolution passed in the AGM  Because of death, incapacity or disqualification

Ceiling of audit

} Sec 224(1B)- not more than 20 co } Not more than 10should have a paid up capital of 25 lakh or more

Rights of Auditor

} Right to call for Information and explanations } Right to have access to books of accounts } Right to notices and attend meetnigs } Right to remuneration


} Scrutinize Loans and advances } Scrutinize entries } Scrutinize Investments } Scrutinize expenses } Verify allotment

Company Law In A Computerized Environment-E-Filing


Section 610B of the Companies Act,1956 as inserted by the companies (Amendment) Act,2006 empowers the central government to introduce EGovernance and to modify the Act to facilitate Electronic filing of forms, returns and documents with the registrar.

What is E-Governance ?

} Electronic Governance is the application of information technology to the government functioning in order to bring about simple,moral,accountable,responsive and transparent (SMART) Governance. } Ministry of Company Affairs(MCA) launched E-Governance (MCA-21) } The portal has been operational since Feb. 20,2006.

Advantages of E-Filing

} Business shall be enabled to register a company and file statutory documents quickly and easily. } Public to get easy access to relevant records and get their grievances redressed effectively. } Professionals to be able to offer efficient services to their client companies } Government to ensure proactive and effective compliance of relevant laws and corporate governance. } Financial institutions to find registration and verification of charges } MCA employees shall be enabled to deliver best of breed services.

Proposed Unique Approach

A new set of E-Forms have been evolved to suit e-filing. } Electronic payment } Five banks } Digital signatures certificates } Facilitation centers (physical front offices or PFO) } Stamp duty } Robust and Scalable computing Infrastructure

Five steps E-Filing Process

} Register Yourself } Download e-form } Complete e-form } Submit e-form } Make payment

Details of New Forms

Ministry of company affairs has notified the e-forms as of 10th February 2006 and made operational from 28th February 2006.

The list of older forms ,changed with revised forms as shown below :

Sr no. 1

Old form Form 1

Revised form Form 1

Subject Application and declaration for incorporation of a company. Application form for availability or change of name Particulars of persons or directors charged. Application for confirmation by Regional Director for change of registered office. Application for approval of the central government for change of name of public company. Return of statement

Category Company registration Change services

Form 1A

Form 1A

3 4

Form 1AA,1AC Form 1AD

Form 1AA Form 1AD

Informational services Approval services

Form 1B

Form 1B

Approval servicesRegistrar of companies Compliance related of filing Compliance related filing.

Form 2


Form 3

Form 3

Particulars of contract relating to shares allotted

Sr no. 8

Old form Form 4

Revised form Form 4

Subject Statement of amount or rate percent of commission payable in respect of shares. Return in respect of buyback of securities Notice of consolidation, division or increase in share capital Particulars for creation or modification of charges Particulars for registration of charges for debentures Appointment or cessation of receiver or manager Particulars for satisfaction of charges

Category Compliance related filing

9 10

Form 4C Form 5

Form 4C Form 5

Compliance related filing Compliance related services Change management Change management Change management Change management


Form 8,13,55,56,59 Forms 10,13,57,59 Forms 15,16,13 Forms 17,13,60

Form 8


Form 10

13 14

Form 15 Form 17

Sr no. 15

Old form Form 18

Revised form Form 18

Subject Notice of situation or change of situation of registered office Declaration of compliance with the provisions of section 149 a,b,c Declaration of compliance with the provisions of section 149 (2)(b) Declaration of compliance with the provisions of section 149(2)(b) Form for filinf annual returns of a company having share capital Notice of the court or the company law board Particulars of annual returns for the company for not having share capital

Category Company registration Company registration Company registration Company registration Compliance related filing Informational services Compliance related filing


Form 19

Form 19


Form 20

Form 20


Form 20A

Form 20A



Form 20B


Form 21

Form 21


Form 21A

Form 21A

Sr no.

Old form

Revised form Form 22




Form 22

Statuatory report

Compliance related filing Informational services Informational services



Form 22B

Form of returns to be filed with the registrar Registration of resolution and agreements


Form 23

Form 23