Social & Legal Issues
Indian Companies Act
1956
Social & Legal Issues
Companies Act, 1956
A company implies an association of persons for some common object(s). According to the act :A company formed and registered under the companies act 1956 or under any previous company law. A company is a contractual entity created by the members.
Social & Legal Issues
Characteristics of a Company
1. 2. 3. 4. 5. 6. 7. 8. 9. Incorporated Association Artificial legal Person Separate legal Entity Perpetual Succession Limited Liability Transferable Shares Common Seal Separate Property Capacity to Sue and Being Sued
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Kinds Of Companies
A) On the basis of mode of Incorporation: Chartered Companies Statutory Companies Registered Companies B) On the basis of Liability of Members Limited by Shares Limited by Guarantee Unlimited C) On the basis on the number of members Private Public D) Others: Govt. Companies, Foreign company, Holding and subsidiary company
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Distinction between private and Public Company
Pvt. Company Public Company
Minimum number of members Minimum number of members to to form a company is 2 form a company is 7 Max. number of members should not exceed 50 Right to transfer share is restricted Prospectus can not be issued Commence business immediately after getting the certificate of incorporation Numbers of Directors must be at least 2 No restriction Freely transferable Prospectus is issued Can start only after receiving the certificate to commence business from registrar of companies Must have at least 3
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Distinction between private and Public Company
Directors consent to work as a Director with Registrar is not necessary Number of Directors can be increased to any number Directors are required to retire by rotation Managerial Remuneration No restriction Can be registered with a paid up capital of Rs. 1 lakh Can not accepts deposits from public Need not hold statutory meeting or file a statutory report Necessary
Not more than 12 without the approval of the central govt. At least 2/3rd of Directors must retire by rotation Not more than 11% of net profit.( not mere than 5% to a sgl.Director) Rs 5 Lakh Can accept deposits from public Must do so
Social & Legal Issues
Lifting The Corporate Veil
The circumstances under which the courts may lift the corporate veil are:
1.
Under Statutory Provisions
Reduction of Membership Misrepresentation of Prospectus Fraudulent Conduct of Business Failure to return application money Mis-description of name Non-payment of tax Liability of ultra -Vires acts
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Lifting of the Corporate Veil 2) Under Judicial Interpretations:
For determining the enemy of the company: Daimler Company vs Continental Tyre rubber company For the Benefit of revenue-Sir Dinshaw Maneckjee Petil, Re For prevention of Fraud and Improper conduct Others
Social & Legal Issues
Formation and Incorporation of a Company
Promotion
Registration/Incorporation Flotation/Raising of Capital Commencement of Business
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Promotion
Promotion refers to the entire process through which a company is brought into existence. It starts with the conceptualization of the birth of the company with an objective for which it is to be formed. The persons who conceive the company and invest the initial funds, are known as promoters.
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Registration/Incorporation of Company
The Promoters of the company will submit the following documents with the Registrar of Companies for the registration of company: Memorandum of Association The article of association A list of persons who have consented to act as directors of the proposed company A statutory declaration of compliance. Any agreement with the relevant persons of the proposed company.
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Registration/Incorporation of Company
The Registrar of the Companies is to allot a Corporate Identity Number to each company registered on or after November 1, 2000.After scrutiny of all the documents a certificate of incorporation is issued
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Flotation and Raising of Capital
A public company can take either of the following
steps: a) Issue a prospectus to invite public for subscription b) Deliver a statement in lieu of prospectus where the company has either not issued the prospectus or through it has issued the prospectus , has not proceeded to allot any shares offered to the public for subscription
Social & Legal Issues
Commencement of Business
Every private company and a company not limited by shares can commence business immediately on receipt of certificate of incorporation. But a public company limited by shares is debarred from commencing business on borrowing money without the certificate of commencement of business Where a company has issued Prospectus The minimum subscription in cash has been raised Every director of the company has paid in cash his qualification shares , a proportion payable on application and allotment on the shares offered for public subscription. No money is liable to be repaid to applicants for any shares or debentures which have been offered for public subscription by reason for any failure to apply for, or to obtain permission for the shares of debentures to be dealt in any recognized stock exchange
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Commencement of Business
A statutory declaration duly verified by one of the directors or the secretary in the prescribed form that the above conditions have been complied with, is filed with the registrar Where the company has not issued prospectus it has to satisfy the following conditions: A statement in lieu of the prospectus if filed with the Registrar Every director of the company has paid in cash his qualification shares , a proportion payable on application and allotment on the shares. A statutory declaration duly verified by one of the directors or the secretary in the prescribed form that the above conditions have been complied with, is filed with the registrar. When the company has compiled with the above conditions the Registrar will issue a certificate to commence business.
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Memorandum of Association
Meaning and Importance
MOA of a company is its charter and defines the limitations of the powers of the company It is not unalterable Content: i) Name of the Company: with limited and private limited as the last word(s) of the name ii) Registered Office iii) Objects of the company : main objects , Incidental and ancillary objects, other objects not included in first two.
Social & Legal Issues
Memorandum of Association
iv) Liability: A declaration is made that the liability of the members is limited. v) Capital-The amount of authorized share capital divided into shares if fixed amount vi) Association or Subscription: The initial members are called subscribers, who sign the memorandum in the presence of one witness
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Articles of Association
Article of Association of a company are its bye laws.
It controls the internal management of the company and defines the powers of its offices.
Social & Legal Issues
Difference of MoA and AoA
Charter of Company Defines the scope of activities Supreme Document Must for every company Strict restrictions, some alterations may require sanction of central govt. Act ultra-vires is wholly void and cant be ratified Regulations for internal Mgt Rules for carrying out the objects of Co. Subordinate to the memorandum Company limited by shares need to have it. Act ultra-vires but intravires the memorandum can be ratified
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Doctrine of Ultra -Vires
Ultra Vires means beyond the powers. Ashbury Railway Cairrageand Iron Company Ltd vs Riche Doctrine of Constructive Notice The memorandum and articles when registered with the Registrar becomes public document and accessible to all. Therefore there is a presumption that any outsider dealing with the company has read and understood these documents. Kotla Venkatswamy vs C Ramamurthy.
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Doctrine of Indoor Management
Persons dealing with the company in good faith have a right to assume that the internal requirements prescribed in public documents (memorandum and articles have been observed. Exceptions: Where the outsider had knowledge of irregularity. In case of forgery Negligence on the part of the outsider Acts outside the scope of apparent authority Rayal British Bank v.Turquand
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Prospectus
Prospectus means any document described or issued as a prospectus and includes any notice, circular, advertisement or other document inviting offers from the public for the subscription and purchase of shares in, or debentures of a body corporate.
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Prospectus
Pre-Requisites of Prospectus
Prospectus must be dated Prospectus must be signed Prospectus must be registered
Golden rule of the Prospectus
There should be an honest disclosure of all facts. The true nature of the companys venture to be disclosed.
Social & Legal Issues
Prospectus
Deemed Prospectus- When a company allots shares or debentures to the public through the medium of Issue Houses, then the issue houses invite subscription from the public through their own offer document. This is also called prospectus by implication. Statement in Lieu of Prospectus- Where a public company does not invite public to subscribe for its shares, but arranges to get money from private sources>The promoters here need not issue a prospectus but are required to draft prospectus Red Herring Prospectus- is a prospectus ,which does not have complete particulars on Price of securities offered and quantum of securities offered. E.g.-Jet Airways, Suzlon
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Membership
Persons who collectively constitute the company as a corporate entity are members or shareholders a) The subscribers to the memorandum b) Who agrees in writing to become member and whose name appears in the register of members c) Who holds equity share capital and whose name is entered as beneficial owner in the records of the depository The agreement in writing to take shares of the company The registration of name in the register of members
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Member/Shareholder
S.no Shareholder Member
Is a member
May not be a shareholder because the company may not have a share capital Struck off from the list Applies for registration Subscriber to a memorandum
Person who owns a bearer share warrant is a shareholder A legal representative of a member
No share are allotted to a subscriber to the memorandum
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Who can be a member
Minor Insolvent Partnership Firm Foreigner Company Trade Union or Society President of India
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Modes of acquiring membership/Index of a member
Membership by subscription Membership by application and registration
A company with more than fifty members shall keep an index of members
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Rights of member / Register of Member
Statutory Rights Contractual/otherwise
Name address and occupation Share held by each member and the amount paid up on those shares Date at which each person was entered in the register as a member Date at which any person ceased to be a member
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Termination of Membership
Transfers his shares Shares are forfeited by the company Surrenders his shares Shares are sold by the company to enforce its lien Dies Is adjudged insolvent Shares have been redeemed by the company Rescind the contract of membership on fraud or misrepresentation
