Alterations of Memorandum of the Company[Section 13(1) of Companies Act,2013]
A Company may,in general,alter its memorandum ,by passing a special resolution and complying with other conditions as provided below.It is most important to note that this is subject to section 61 of the 2013 Act,which lays down the limitations and conditions by which a limited company may take alterations of its share capital. This Corresponds broadly to section 17 of the 1956 Act,which also provided for a special resolution to alter the memorandum of the company.
Alterations of the name of the company [Section 13(2) and (3) of the Companies Act,2013]
A company may change its name (subject to section 4(2) and (3) of the 2013 Act) with the approval of the Central Government,and such change in name shall be effective only once the Registrar has issued a new certificate of incorporation.The powers of the Central Government under sub-section(2) have been delegated to the Registrar of Companies.
To also note that while section 13(3) of the 2013 Act,does not require the Registrar to also may take alterations of the memorandum of the company.In addition there is no specific section in the 2013 Act that states specifically that the rights,duties and obligations of the company prior to its change in name,will remain unaffected.It appears that the 2013 Act has deliberately omitted the requirement of Section 23(3) of the 1956 Act since change of name does not affect the entity or its continuity as the same entity.It remains for all practical purposes the same entity with the same rights,privileges and liabilities as before and there is no need to have an explicit provision for the same.Rule 29 of the Companies(incorporation) Rules,2014 also provides that the change of name shall not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures or interest on deposits or debentures.
Adding and Deleting “Private” to the name [Provision to section 13(2) of Companies Act,2013]
The provision to section 13(2) provides that the change in the name of the company is the deletion or addition of the word “Private”, the conversion of any one class of companies to another class in accordance with the provisions of the 2013 Act.It must be noted that the 1956 Act did not require the Central Government approval for addition or deletion of the word private.The 2013 Act however,does explicitly states that approval is not required for this change,it is made after conversion of companies from one class to another in accordance with the Act.
Alterations of registered office from one state to another [Section 13(4) and (5) of the Companies Act,2013]
The memorandum of association may be altered to change the registered office from one state to another.As provided in the 1956 Act,in the 2013 Act too,such change in the memorandum will not have any effect,unless it is approved by the Central Government.This power of the Central Government has been delegated to the regional Directors , by a notification.By section 13(5) of the 2013 Act,the Central Government is required to dispose such an application.The 2013 Act also casts an additional responsibility on the Central Government,to satisfy itself that the alterations has the consent of the creditors,debenture-holders and other persons concerned with the company.The Central Government may also satisfy itself that sufficient provision has been made by the company for the due discharge of all its debts and obligations,and may also require that adequate security be provided for such discharge.
Filling of documents
The Rule casts a duty on the company to also file the following documents while seeking approval
a)a copy of the memorandum and articles of association
b)a copy of the notice convening the general meeting along with the relevant Explanatory Statement.
c)a copy of special resolution sanctioning the alteration by the member of the company.
d)a copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed,giving details of the number of supports and opposes.
e)an Affidavit of the application
f) the list of creditors and debenture holders of the application.
g)an Affidavit verifying the list of creditors
h)the document relating to payment of application fee;
i) a copy of Board resolution or Power of Attorney or the executed Vakalatnama,as the case may be.
List of creditors/debenture holders
The company should also provide a list of creditors and debenture holders,drawn up to the latest practicable date proceeding the date of filing an application.In addition the applicant company shall file an affidavit,signed by the Company Secretory of the company ,if any and not less than two directors of the company,one of them being a Managing Director (where there is one),to the effect that they have made a complete inquiry of a company and have formed an opinion that the list of creditors is correct ,and that the estimated value as given in the list of the debts or claims payable on not ascertained are proper estimates.
The directors shall also provide an affidavit from the directors of the company that the no employee shall be retrenched as a consequence of shifting of the registered office from on state to another state and also there shall be an application filed by the company to the Chief Secretory of the concerned State Government or the Union Territory.
Notifying public/SEBI/Regulatory bodies
The company shall also advertise the application in a vernacular newspaper in the principal vernacular language in the district in which the registered office of the company is situated,and at least one in English Language in an English newspaper circulating in that district ;and b) serve,by registered post with acknowledgement due,individual notice(s),on each debenture-holder and creditor of the company ;The company should also communicate the objection of any person whose interest is likely to be affected by the proposed application if it has received by the company.
Alterations of Registered office within the same state
Rule 28 of the Companies(Incorporation) Rules,2014 also provide for the manner in which registered office may be shifted within the same state.In relation to the alterations of the memorandum (except as those covered by section 64 of the 2013 Act),the company will have to file appropriate documents with the Registrar.This includes filing:
a) A copy of the special resolution passed by the company in case of such alteration
b)In the case of a change of name,the approval of the Central Government
c) In the case of inter-state change of registered office ,the certified copy of the Central Government order.This shall be filed with the Registrar of companies in both the states .The fresh certificate of incorporation shall be issued by the Registrar companies in the state where the registered office is shifted to.
Alterations objects of a company that has raised money from public[Section 13(8) of Companies Act,2013]
A company,which has raised money from public through prospectus and still has any unutilized amount out of the 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.In addition the company has to mendatorily publish the details in respect of such resolution in the newspaper(one in English and one in vernacular language).This should be in the place where the registered office of the company is situated. In addition a similar notice of such resolution should also be placed on the website of the company.The company should also provide an opportunity for dissenting shareholders ,if any,to exist by the promoters and shareholders having control in accordance with regulations to be specified by the Securities and Exchange Board of India.
Alteration to objects to be registered in 30 days [section 13(9) of companies Act,2013]
Section 13(9) of the 2013 Act,also states that the registrar shall register the alterations of the memorandum with respect to the objects of the company and certify the registration within a period of thirty days from the date of filing of the special resolution .Section 13(9) of the 2013 Act is worded in a manner to imply that the Registrar must mandatorily register the alteration within thirty days of filing of the special resolution.However,it is the duty of the company to ensure that in addition to the special resolution it complies with all the other conditions in the 2013 Act[like conditions in section 13(8) and the rules].
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