Company Law

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Company Law
Presented by Advocate N. P. Noronha
Meaning
The term company is derived from the Latin word
com meaning with or together and pains
meaning bread.
Originally it referred to a group of persons who
would take their meals together.
A company is an assemblage of people who have
come together for some specific purpose,
economic or otherwise and who have incorporated
themselves into a distinct legal entity.
2 Presented by Advocate N. P. Noronha
Definition
According to Lindleys
A Company is an association of many persons
who contribute money or moneys worth to a
common stock, and employ it in some common
trade or business for a common purpose and who
share the profit or loss arising therefrom. The
common stock so contributed in money is the
capital of the company. The person who
contributes it or to whom it belong are the
members. The proportion to which each member is
entitled is his share.

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Characteristics of a Company
Incorporation offers the following advantages
to the business community as compared with
all other kinds of business organisations
1. Independent Corporate Existence / Legal Entity
2. Limited Liability
3. Perpetual Succession
4. Separate property
5. Transferable Shares
6. Common Seal
7. Capacity to sue and being sued

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1. Independent Legal Entity or Corporate
Existence
The outstanding feature of a company is its
independent existence. A partnership has no
existence apart from its members. It is nothing
but a collection of partners. A company on the
other hand, is in law a person. It is a distinct
legal persona existing independent of its
members. By incorporation under the Act, the
company is vested with a corporate personality,
which is distinct from the members who
compose it. Thus a company becomes a body
corporate which is capable immediately of
functioning as an incorporated individual.
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A well known illustration of this principle is the decision of the
House of Lords in Salomon Vs. Salomon & Co. Ltd. (1897)

One Mr. Aron Salomon was a boot and shoe manufacturer. His
business was in sound condition and there was a substantial
surplus of assets over liabilities. He incorporated a company
named, Salomon Co. Ltd. for the purpose of taking over and
carrying on his business. The seven subscribers to the
memorandum were Salomon, his wife and daughter and four
sons and they remained the only members of the company.
Salomon, with his two sons, constituted the board of directors of
the company. The business was transferred to the company for
a sum of 40,000 pounds. In payment Salomon took 20,000
shares of 1 pound each and debentures worth 10,000 pounds.
These debentures certified that the company owed Salomon
10,000 pounds and created a charge on the companys assets.
One share was given to each remaining member of his family.
The company went into liquidation within a year.
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On winding up, the state of affairs was broadly something
like this
Assets -- 6,000 pounds
Liabilities -- Salomon as debenture holder 10,000 pounds
and unsecured creditors 7,000 pounds.
Thus paying off the debenture holder nothing would be left
for the unsecured creditors.
The unsecured creditors, therefore, contended that, though
incorporated under the Act, the company never had an
independent existence ; it was in fact Salomon under
another name ; he was the managing director, the other
directors being his sons under his control. His vast
preponderance of share made his absolute master. The
business was solely his, conducted solely for and by him
and the company was a mere sham and fraud, in effect
entirely contrary to the intent and meaning of the Companies
Act. Therefore they carried preferential right as to repayment
of their dues over Salomon.


The House of Lords held
The company is at law a different person
altogether different from the shareholders
and though it may be true that after
incorporation the business is precisely the
same as it was before, and the same
persons are the managers, and the same
hands received the profits, the company is
not in law the agent of the shareholders or
trustee for them. Nor are the shareholders,
as members, liable in any shape or form,
except to the extent and in the manner
provided for by the Act.
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2. Limited Liability
The privilege of limiting liability for business debts is
one of the principal advantages of doing business under
the corporate form of organisation. The Company
being a separate person, is owner of its assets and
bound by its liabilities. Members, even as a whole, are
neither the owners of the companys undertaking, nor for
its debts. In other words, the liability of the members is
limited. No member is bound to contribute anything
more than the nominal value of the shares held by him.
In a partnership, on the other hand, the liability of the
partners for the debts of the business is unlimited. They
are bound to meet, without any limit, all the business
obligations of the firm. The whole fortune of a partner is
at stake, as the creditors can levy execution even on his
private property.
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3. Perpetual Succession
An incorporated company never dies. It is an entity with perpetual
succession. Suppose, for example, that A, B and C are the only
members of a company holding all its shares. The shares may be
transferred to, or inherited by X, Y and Z, who may, therefore,
become the new members and managers of the company. But the
company will remain the same entity. In spite of the total change in
membership, the company will be the same entity, with the same
privileges and immunities, estates and possessions. Perpetual
succession, therefore, means that the membership of a company may
keep changing from time to time, but that does not affect the companys
continuity. The death or insolvency of individual members does not, in
any way, affect the corporate existence of the company. Members
may come and go but the company can go on for ever. It is created by
a process of law and can be put an end to only by a process of law.
In one case, during war all the members of a private company while in a
general meeting were killed by a bomb, the company survived, not even
a hydrogen bomb could destroy it.
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4. Separate property
A company, being a legal person, is capable of owning,
enjoying and disposing of property in its own name. The
company becomes the owner of its capital and assets.
The share holder are not the private or joint owners of
the companys property. The company is the real
person in which all its property is vested, and by which it
is controlled, managed and disposed of. Incorporation
helps the property of the company to be clearly
distinguished from that of its members. In a partnership,
on the other hand, the distinction between the joint
property of the firm and the private property of the
partners is often not clear.
Supreme Court has held that a shareholder is not a part
owner of the company or its property, he is only given
certain rights by law, for example, to vote or attend
meetings or to receive dividends.
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5. Transferable Shares
When joint stock companies were established the great object
was that their shares should be capable of being easily
transferred. Accordingly the Companies Act in section 82
declares : The shares or other interest of any member in a
company shall be movable property, transferable in the manner
provided by the articles of the company. Thus incorporation
enables a member to sell his shares in the open market and to
get back his investment without having to withdraw the money
from the company. This provides liquidity to the investor and
stability to the company. In a partnership, on the other hand, a
partner cannot transfer his shares in the capital of the firm except
with the unanimous consent of all the partners.
6.Capacity to sue and being sued

A company, being a body corporate, can
sue and be sued in its own name.
A company has every right to enter into
contractual obligations with other parties.
The Supreme Court of India has however
in the case of Sate Trading Corporation of
India held that a company cannot have a
status of a citizen of India under the
Constitution of India

7. Common Seal
A company though a juristic person does not have a
physical presence. Therefore its acts through its
managerial personnel, the Board of Directors for carrying
out its activities and entering into various agreements.
Such contracts must bear the seal of the company. The
common seal is a seal used by a company as a symbol
of its incorporation and acts as the official signature of
the company. The name of the company must be
engraved on the common seal. Any document not
bearing the common seal my not be accepted as
authentic and hence the same may not have any legal
force.
Types of Companies
1. Private and Public Companies
2. Limited Companies
3. Section 25 Companies
4. Parent and Subsidiary Companies
5. Government Company
6. Foreign Company
Private Company
A private company as per Companies Act means a
company that has a minimum paid up capital of
Rs. 1,00,000 or a higher paid up capital and which
also by its articles
a) restricts the right to transfer its shares, if any
b) Limits the number of its members to 50 not
including
i. Persons who are in the employment of the company
ii. Persons who were earlier in the employment of the
company and were members have continued to be
member after separation.

Presented by Advocate N. P. Noronha 16
Private Company
A Company is a private company if by its articles it
c. Prohibits any invitation to the public to subscribe for any
shares or debentures of the company and
d. Prohibits any invitation or acceptance of deposits from
persons other than its members, directors or other
relatives.

If a private limited company contravenes any of the
provisions, it ceases to be a private company and thereby
loses all the exemptions and privileges, which it otherwise
is entitled to.
Public Company
A public company means a company that
a.is not a private company
b.has a minimum paid up capital of Rs. 5,00,000/- or higher capital.
c.Is a private company which is a subsidiary of company that is not a
private company
There are some cases when a private limited company is deemed to be a
public limited company
1. When 25% or more of its paid up share capital held by one or more
corporate.
2. When its average annual turnover during the last 3 years financial
years is more than Rs. 25 crores.
3. When it holds 25% or more of the paid up capital of a public
company.
4. When a private company accepts deposits from public after making
an invitation by an advertisement.

Limited Company
A limited company is one wherein the liability of
its members is limited. There are three types of
limited companies
1. A company limited by shares

2. A company limited by guarantee
1. Company limited by Shares - A limited company
is a company limited by shares if the liability of
each shareholder or member is limited to the
amount individually invested. Shareholder have
no liability in case of fully paid up share.
2. Company limited by guarantee A limited
company is a company limited by guarantee if the
members guarantee the payment of a certain
amount (usually nominal) if the company does
into insolvency. The members have no economic
rights is such a company. Such a company is
formed for non commercial purpose such as
clubs or charities.
Sec. 25 Company
The Companies Act requires that the name of a public
limited company should end with the words Limited and
the name of a private limited company shall end with the
words Private Limited. However the Central Government
may allow certain companies to remove the word Limited
or Private Limited from their names if they follow
conditions which are as under
1. The company is formed for promoting commerce,
science, art, charity or other social useful objects and
do not have a profit motive.
2. The company does not intend to pay dividend to its
members but apply its profits and other income in
promotion of its objectives.
Parent Company & Subsidiary Company
A company is called as a subsidiary of the other if,
1. The other company controls the composition of its
board of directors i.e. the parent company has the
power to appoint or remove all or any of the directors of
the subsidiary company.
2. The other company holds more than half of its equity
share capital
3. Where the 1
st
mentioned company is a subsidiary
company of any company which in turn is a subsidiary
of the other company.
Eg. If company B is subsidiary of the Company A and C
is subsidiary of B, therefore company C is also a
subsidiary company A.
Government Companies
A public enterprise incorporated under the Companies Act
is a government company. Sec. 617 of the companies act
states that a government company means any company
in which not than 51 % of the paid up share capital is held
by
1. The Central Government
2. State Government
3. Partly by Central and State Government
A subsidiary company of a government company is also to
be treated as a Government Company.
Foreign Companies
Foreign Company means a company
incorporated in a country outside India under the
law of that other country and has established the
place of business in India.
As per Companies Act foreign company means
a company which is not a domestic company.
A foreign company is one which in respect of its
income is not liable for Income Tax in India and
which has not made arrangements for payment
within India of dividends out of its income.
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Lifting or piercing the Corporate Veil
A company is distinct from its members. It is a separate legal
entity. There is a veil between the company and its members ,
keeping them both separate from each other. However,
sometimes it becomes necessary to lift this veil, disregard the
distinct corporate entity of the company and find out the
realities of the company. The court may investigate the real
affairs, ownership etc. of the company. Where the corporate
personality is being used unjustly or as a sham device, the
court will ignore the cloak to reach the persons under it or
reveal the true form and character of the concerned company.
This is called lifting or piercing the corporate veil. Under the
principle a stakeholder or a director of the company is held
liable to the debts or liabilities of the company despite the
general principle that shareholders are immune from suits in
contract that otherwise would hold only the company liable.
Lifting or piercing the Corporate Veil
The court may rip apart the corporate veil in order to
expose the true character and nature of a company
are statutory intervention and judicial interpretation.
Statutory intervention means if any of the provisions
of the companies act are violated then the corporate
veil can be lifted.
Judicial interpretation means when the court finds
from the facts of the case there is some irregularity
in the functioning of the company in such case also
the corporate veil can be lifted.
Lifting of corporate veil though
Statutory intervention
The court may lift the veil if it violates the
statutory provisions in the following case
1. Reduction of number of members below the
statutory minimum
2. Misrepresentation in the prospectus
3. Failure to return application money
4. Misdescription of Companys name
5. Fraudulent or Wrongful Trading
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1. Reduction of Membership
Section 45 provides that if at ant time the number
of members of a company is reduced, in the case of
a public company, below seven, or in the case of a
private company, below two and the company
carries on business for more than six months while
the number is so reduced, every person who is a
member of the company. And is cognizant of the
fact shall be severally liable for the payment of
the whole debts of the company contracted during
that time The purpose of the provision is to
withdraw the advantages of incorporation when the
conditions of incorporation are not maintained.
2. Misrepresentation in Prospectus
Where a prospectus includes an untrue
statement, every director, promoter and every
other person who is a party to such prospectus
shall be liable to pay compensation to every
person who subscribes any shares or
debentures based on the prospectus for loss or
damage he may have sustained by reasons of
the untrue statement. Every person who has
issued the prospectus shall also be liable to
imprisonment upto 2 years or fine of Rs.
50,000/- or both.
3. Failure to return application money
If minimum subscription of 90% is not
received within 90 days from closure of any
issue, the money received from the
applicants for shares shall be repaid without
interest. If such money is not repaid within 70
days of closing of the issue, the directors of
the company shall be personally liable to
repay that money with interest @ 15% p.a.
from the expiry of 70 days.
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4. Mis description of Name
Secondly, where in any act or contract of a
company, its name is not fully or properly indicated
as required by section 147 those who have actually
done the act or made the contract shall be
personally liable for it. Thus the directors were held
personally liable on a cheque signed by them in the
name of a company stating the companys name as
L.R. Agencies Ltd., the real name being L.& R.
Agencies Ltd. (Hendon Vs. Adelman 1973
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5. Fraudulent Conduct of Business
Thirdly, section 542 imposes liability for fraudulent
conduct of a companys business. According to this
section if in the course of winding up of a company,
it appears that any business of the company has
been carried on with intent to defraud creditors of
the company or any other persons, or for any
fraudulent purpose. Those who were knowingly
parties to such conduct of business may, in the
discretion of the court, be made personally liable for
all or any debts of the company.
Lifting of corporate veil though
Statutory intervention
The court may lift the veil if the court finds
some irregularities in the functioning of the
company
1. Prevention of Fraud or improper conduct
2. Determination of Enemy Character
3. Tax Consideration

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1. Fraud or Improper Conduct
The Corporate entity is wholly incapable of being used to an
illegal or fraudulent purpose. The courts will refuse to uphold
the separate existence of the company where it seems to have
formed to defeat or circumvent law, to defraud creditors or to
avoid legal obligations. One clear illustration is Gilford Motor
Co. Vs. Horne (1933)
Horne was appointed as a Managing Director of the plaintiff
company on the condition that he shall not at any time while
he shall hold the office of a managing director or afterwards,
solicit or entice away the customers of the company. His
employment was determined under an agreement. Shortly
afterwards he opened a business which was merely a vehicle
to circumvent a covenant in restrain of trade.
It was held that the company was a mere mask held over the
face in an attempt to defraud the creditors. Specific
performance was awarded both against the Horne and the
Company.
2. Determination of enemy character
Occasionally it becomes necessary to determine the character of
a company, for example, to see whether it is enemy. In such a
case, the courts may in their discretion, examine the character of
persons in real control of the corporate affairs. Daimler Co. Ltd.
Vs. Continental Tyres & Rubber Co., is a well known
illustration.
A company was incorporated in England for the purpose of
selling the tyres manufactured in Germany by a German
company. The German company held the bulk of the shares in
the English company. The holders of the remaining shares (save
one) and all the directors were Germans, resident in Germany.
Thus the real control of the English company was in German
hands. During the First war the English company commenced
an action to recover a trade debt. And the question was whether
the company had become an enemy company and should,
therefore, be barred from maintaining the action
2. Determination of enemy character
The House of Lords laid down the company had
assumed an enemy character as the person in
de facto control of its affairs were resident of an
enemy. Accordingly the company was not
allowed to proceed with the action.
If the action had been allowed the company
would have been used as a machinery by which
the purpose of giving money to the enemy would
be accomplished and that would be against
public policy.
3. Tax Consideration
At times tax legislations warrant lifting of the corporate veil.
The courts are prepared to disregard the separate legal
personality of companies in case of tax evasions or liberal
schemes of tax avoidance without any necessary legislative
authority.
In Sir Dinshaw Maneckjee Petits case the assessee was a
wealthy man enjoying huge dividend and interest income. He
formed 4 companies and agreed with each to hold a block of
investment as an agent for it. Income received was credited in
the account of the company but company handed back the
amount to him as a pretended loan. This was he divided his
income in 4 parts in a bid to reduce his tax liability.
It was held that the company was formed by the assessee
purely and simply as a means to avoid super tax and the
company was nothing put the assessee himself.
Formation of
Company
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Formation of Company
A company being a legal entity does not come
into life on its own or through an agreement. The
Companies Act keeping in view the interest of
potential stakeholders has laid down certain
norms to be complied with by every company
before it comes into existence.
For formation of a company the important stages
one needs to understand are
Promotion
Incorporation
Promotion
Promotion means the process by which a company is
brought to life. It begins with conceptualization of the
birth of the company and the purpose for which the
company needs to be formed.
The persons who conceive the idea to from a company
and invest the initial funds are known as the promoters
of the company. The promoters entre into preliminary
contracts with vendors and make arrangement for the
preparation, advertisement and the circulation of the
prospectus and arrangements of necessary capital.
The Promoters hold a fiduciary position in the company
and they have a duty not to make secret profits during
buying asserts for the company.
Incorporation
Incorporation or registration is the most
important obligation to be fulfilled to form a
company. No company can come into existence
without being formally incorporated.
Incorporation is the procedure which is filled with
documentary compliance formality. For a
company to be incorporated it must be
registered with the Registrar of Companies. An
application needs to be made to the ROC of the
state in which the office of the company is
located.
Incorporation
The details to be stated in the application are
1. Four alternative names for proposed company. The name can
be made from the object of the proposed company or name of
the directors etc. which should be indicative of the object of the
company.
2. Name and address of the promoters
3. Authorsied capital of the proposed company
4. Main object of the company
The registrar of companies scrutinizes the application and
thereafter sends his approval or objection within 10 days form its
receipt. The ROC then sends a formal letter of approval of the
name of the company. On receipt of the name approval letter
Memorandum of Association and Articles of Association are
drafted.

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Apart from the Memorandum of Association and Articles of Association
other documents are also required to be filed with the ROC for
registration of the company.
1. The proposed agreement with an individual for appointment as the
managing director or director or manager of the company.
2. The statutory declaration signed by an Advocate, attorney or pleader
entitled to appear before a High Court or a C.S or a C.A. practising in
India, who is engaged in the formation of a company or a person
named in the articles as a director, managing agent, secretaries and
treasurers, manager or secretary of the company. stating that all the
requirements of the Act relating to registration have been complied with.
3. In addition for Public Limited Companies a written consent of director
that he agrees to Act as director. The complete address of the
registered office and particulars of appointment of M.D., directors,
manager of the company is also required to be filed in different Forms
as provided under Companies Act.
4. A certificate of incorporation is then issued by which the registrar
certifies under his hand that the company is incorporated and, in the
case of a limited company, that the company is limited after which a
company becomes a legal entity.
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Pre-incorporation Contracts
Sometimes contracts are made on behalf of a company even
before it is duly incorporated. But no contract can bind a
company before it becomes capable of contracting by
incorporation. Two consenting parties are necessary to a
contract, whereas the company, before incorporation, is a non-
entity. Thus In English & Colonial Produce Co. (1906) : A
solicitor, on the instructions of certain gentlemen, prepared the
necessary documents and obtained the registration of a
company. He paid the registration fee and incurred the incidental
expenses of registration.
But the Company was held not bound to pay for those services
and expenses
The company could not to be sued for those expenses,
inasmuch as it was not in existence at the time when the
expenses were incurred . and ratification was impossible
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Commence of business ( Section 149)
A private company can commence business right from the date
of its incorporation. But, in case of a public company, a further
certificate for the commencement of business has to be
obtained. Where a company has issued a prospectus inviting
the public to subscribe for its shares, it will be entitled to the
certificate subject to the following conditions:
1. shares payable in cash must have been allotted up to the
amount of the minimum subscription;
2. directors must have paid in cash the application and allotment
money in respect of the shares contracted to be taken by them
for cash;
3. no money is liable to become refundable to the application by
reason of the failure to apply for or to obtain permission for
shares or debentures to be dealt in on any recognised stock
exchange.

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A declaration signed by any director of the
company or its secretary that the above
requirements have been complied with should be
filed with the Registrar. A company which has not
issued a prospectus has only to file a statement in
lieu of prospectus and to certify that every director,
has paid his application and allotment money for
shares contracted to be taken by him for cash.
When this is done, the Registrar certifies that the
company is entitled to commence business. The
certificate is conclusive evidence that the company
is so entitled.
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No public company can commence any business or
exercise any borrowing power unless this certificate is
obtained. Any contract made before the date at which the
company is entitled to commence business shall be
provisional only and shall not be binding on the company
until the certificate is obtained.
The Amendment Act of 1965 has introduced certain new
conditions for the commencement of business by a
company. It has added two new sub-sections to section
149.
As a result of the amendment of section 13, the objects
clause of a company incorporated after the amendment will
have to be divided into two sub-clauses, namely :
1. Main Objects : This will state the main objects of the
company and the objects incidental or ancillary to the
attainment of the main objects.
2. Other objects : This will include a statement of other objects
not mentioned in the above clause.
Memorandum of
Association
Presented by Advocate
N. P. Noronha
48
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Memorandum of Association
An important step in the formation of a company is
to prepare a document called the memorandum of
association. Its importance lies in the fact that it
contains the following fundamental clauses which
have often been described as the conditions of the
companys incorporation:
1. Name Clause ;
2. Registered Office Clause ;
3. Objects Clause ;
4. Liability Clause; and
5. Capital Clause.
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1. Name
The first clause of the memorandum is required to state the
name of the proposed company. A company, being a legal
person, must have a name to establish its identity. The
name of a corporation is the symbol of its personal
existence. Any suitable name may be selected subject,
however, to the following restrictions.
In the first place, no company can be registered with a
name which, in the opinion of the Central Government, is
undesirable. [Section 20 (1)]. The name of the company
should not be identical with or should not too nearly
resemble, the name of another registered company, for
such a name may be declared undesirable by the Central
Government. [Section 20 (2)] Moreover, the other company
can also apply for an injunction to restrain the new-comer
from having an identical name
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Use of the word Limited and
Publication of Name
Secondly, whatever be the name of the company, if the liability of
the company is limited, the last word of the name must be Limited,.
And in the case of a private limited company Private Limited. This
is to ensure that all persons dealing with the company shall have
clear notice that the liability of the members is limited. And for the
same reason it is further required that such name of the company
must be printed on the outside of every place where the business of
the company is carried on. (Section 147) Such name, including the
address of the registered office, must also be mentioned on all
business letters and other official publications, on all negotiable
instruments issued or endorsed by the company and all other
orders, receipts, etc. Any defect in this respect might involve the
officers of the company in most serious consequences. For
example a bill of exchange is issued by a company on which its
name is not properly mentioned or if the word limited has been
omitted, and if the company fails to pay the bill, the officer who
issued or authorised the issue of such bill would be personally liable
under it and also will be punishable with a fine.
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But the omission must be deliberate or of negligent origin
and not merely accidental. Thus in Dermatine Co. Ltd.
Vs. Ashworth (1905) A bill of exchange was drawn
upon a limited company in its proper name and it was
accepted by two directors of the company. The word
limited, however, did not appear in acceptance. The
reason was that the rubber stamp by which the words of
acceptance were impressed on the bill was longer than
the paper of the bill, and therefore, the word limited
overlapped the paper.
On the companys failure to pay the bill it was held that
the directors would not be personally liable thereon. It
was an obvious error of most trifling kind and the
mischief aimed at by the Act did not exist.
53
But in Nassan Stream Press Vs. Tyler (1894) The
registered name of a company was Bastille Syndicate
Ltd. The defendants who were two directors and
secretary of the company accepted a bill of exchange on
its behalf giving the name of the company as The Old
Paris and Bastille Ltd.

It was held that the name of the company was not
mentioned in accordance with the requirements of the
Act and that the company not having paid the bill, the
defendants were personally liable thereon. Correct
name of the company should be inserted. Any omission
or addition amounting to misdescription would make the
persons purporting to sign the bill personally liable.
On the same principle the directors were held personally
liable on a cheque signed by them on the companys
behalf stating the name as L.R. Agencies Ltd., the real
name being L &.R. Agencies Ltd.
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2. Registered Office
The second clause of the memorandum must
specify the State in which the registered office of the
company is to be situated.
Within thirty days of incorporation or
commencement of business, whichever is earlier,
the exact place where the registered office is to be
located must be decided and notice of the situation
given to the Registrar who is to record the same.
[Section 146]
All communications to the company must be
addressed to its registered office. [Section 51]
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Change of Registered Office
Clause
A company can shift its registered office from one place to
another within the same city, town or village. [Section 146(2)]
But if it is proposed to carry the registered office from one city to
another within the same State, a special resolution to that effect
must be passed. A notice of any such change must be given to
the Registrar within thirty days of the change.[Section 146(4)]
Shifting of the registered office from one State to another is a
much more complicated affair, as it involves alteration of the
memorandum itself. The alteration of the memorandum for this
purpose is subject to the provisions of section 17 which requires,
in the first place, a special resolution of the company and, in the
second, confirmation by the Company Law Board.
56
The Board can confirm the alteration only if the
shifting of the registered office from one state to
another is necessary for any of the purposes
detailed in Section 17(1). When this condition is
fulfilled, the second stage is reached, namely, to
consider the objections of a person or class of
persons whose interest will, in the opinion of the
Board, be affected by the alteration. [Section 17 (3)]
In two cases before the Orissa High Court, (Orient
Paper Mills Ltd. Vs. The State 1957 and In re
Orissa Chemicals and Distilleries 1962) shifting
of the registered offices of certain companies to
places outside Orissa was opposed by the State on
the grounds, including the loss of revenue and
employment opportunities.
57
3. Objects and Powers
In the third clause, the memorandum must state the objects
for which the proposed company is to be established. The
objects clause must be divided into three sub-clauses,
namely :
1. Main objects : This sub-clause must state other objects
to be pursued by the company on its incorporation and
objects incidental or ancillary to the attainment of the
main objects.
2. Objects, incidental or ancillary to the attainment of the
main object.
3. Other Objects : This sub-clause must state other objects
which are not included in the above clause.
States to which objects extend : In case on non-trading
companies, whose objects are not confined to one State, this
sub-clause has to mention the States to whose territories the
objects extend.

58
Why objects ?.
The ownership of the corporate capital is vested in the
company itself. But in reality that capital has been contributed
by the shareholders and is held by the company as though in
trust for them. Such a fund must obviously be dedicated to
some defined objects so that the contributors may know the
purposes to which it can be lawfully applied. The statement of
objects, therefore, gives a very important protection to the
shareholders by ensuring that the funds raised for one
undertaking are not going to be risked in another.
The object clause, in the second place, affords a certain
degree of protection to the creditors also. The creditors of a
company trust the corporation and not the shareholders and
they have to seek their payment only out of the companys
assets. The fact that the corporate capital cannot be spent on
any project not directly within the terms of the companys
objects gives the creditors a feeling of security.
59
The doctrine of ultra Vires
The reasons which explain the necessity of an objects
clause require that the company should devote itself only to
the objects set out in the memorandum and to no others. It
is the function of the memorandum to delimit and identify
the objects in such plain and unambiguous manner as that
the reader can identify the field of industry within which the
corporate activities are to be confined. And it is the
function of the courts to see that the company does not
move in a direction away from that field. That is where the
doctrine of ultra vires comes into play in relation to joint
stock companies. Ultra means beyond, Vires
means powers. An action outside the memorandum is
ultra vires the company.
60

The doctrine of Untra Vires was was first demonstrated by the
House of Lords in Ashbury Railway Carriage and Iron Co.
Ltd. Vs. Riche.(1875)
The memorandum of association of a company defined its
objects as : The objects for which the company is established
are to make and sell or lend on hire, railway carriages and
wagons and all kinds of railway plants, etc; to carry on the
business of mechanical engineers, and general
contractors. The company entered into a contract with
Riche, a firm of railway contractors, to finance the construction
of a railway line in Belgium. The company, however, repudiated
the contract as one ultra vires. And Riche, brought an action for
damages for breach of contract. His contentions were that the
contract in question came well within the meaning of the words
general contractors and, was, therefore, within the powers of
the company, and, secondly, that the contract was ratified by a
majority of the shareholders.
But the House of Lords held that the contract was ultra vires
and, therefore, null and void.
61
Effects of ultra Vires Transactions
When a company gets involved in a ultra vires transaction the
question arises what are its effects.
1. Injunction
Whenever an ultra vires act has been or is about to be
undertaken, any member of the company can get an injunction to
restrain it from proceeding with it.
2 .Personal Liability of Directors
It is one of the duties of the directors to see that the corporate
capital is used only for the legitimate business of the company. If
any part of it has been diverted to purposes foreign to the
companys memorandum, the directors will be personally liable
to replace it. Thus, for example, the Bombay High Court in
J ehangir R. Modi Vs. Shamji Ladha [1855] held that
A shareholder can maintain an action against the directors to
compel them to restore to the company the funds of the company
that have by them been employed in transactions that they have
no authority to enter into, without making the company a party to
the suit.
62
3. Breach of warranty of authority
It is the duty of an agent to act within the scope of his authority.
For if he goes beyond he will be personally liable to the third party
for breach of warranty of authority. The directors of a company
are its agents as such it is their duty to keep within the limits of the
companys powers. If they induce, however innocently, an
outsider to contract with the company is a matter in which the
company does not have the power to act, they will be personally
liable to him for his loss. In Weeks Vs. Propert (1873)
A railway company invited proposals for a loan on debentures. At
that time the advertisement was published the company had
issued debentures of the amount of 60,000 being the full amount
which it was by its constitution authorised to issue. It had, thus,
exhausted its borrowing powers. The plaintiff offered a loan of
500 upon the footing of that advertisement. The directors
accepted it and issued to him a debenture of the company. The
loan being ultra vires was held to be void. In an action by the
plaintiff against the directors, it was held that the directors had
warranted that they had power to borrow which they did not in fact
possess. Their warranty consequently was broken and they were
personally liable.
63
4. Ultra vires acquired Property
If a companys money has been spent ultra vires in
purchasing some property, the companys right over that
property must be held secure. For, that asset, though
wrongly acquired, represents the corporate capital.
Thus, for example, the Madras High Court in the case of
Ad. Sait Vs. Bank of Mysore (1930) allowed a
company to sue on a mortgage to recover the money
lent in spite of the fact that the transaction was beyond
the powers of the company.
64
Liability Clause
The fourth clause has to state the nature of liability that the
members incur. If the company is to be incorporated with
limited liability, the clause must state that the liability of the
members shall be limited by shares. This means that no
member can be called upon to pay anything more than the
nominal value of the shares held by him, or so much thereof
as remains unpaid ;and if his shares be fully paid up his
liability is nil. If it is proposed to register the company limited
by guarantee, this clause will state the amount which every
member undertakes to contribute to the assets of the
company in the event of its winding up. The clause will run
like this : Every member of the company undertakes to
contribute to the assets of the company in the event of its
being wound up such amounts as may be required, not
exceeding one thousand rupees. [Sections 13(3) and 12 (2)
(b)]
65
Capital clause
The last clause states the amount of the nominal
capital of the company and the number and value of
the shares into which it is divided.
Subscription
The memorandum concludes with the subscribes
declaration. The memorandum has to be subscribed
by at least seven persons in the case of a public
company and by at least two in the case of a private
company. Each subscriber must sign the document
and must write opposite his name the number of
shares he takes. However no subscriber shall take
less than one share. After incorporation no
subscriber can withdraw his name on any ground
whatsoever.
Articles of
Association
66
Articles of Association
The Articles of Association is the chief
instrument which contains the rules and
regulations for the internal administration of the
company. Articles of Association is a contract
between a shareholder and the company. It is a
document which regulates the internal
management of the company.
68
Form and signature of articles
(Section 30)
If articles are proposed to be registered they
must be printed. They should be divided into
paragraphs, each consisting generally of one
regulation and numbered consecutively. Each
subscriber of the memorandum has to sign the
document in the presence of one attesting
witness, both of them adding their addresses
and occupation.
Contents of Articles
The Articles of Association shall contain provisions relating to
1. Share capital
2. Payment, calls, transfer, lien, transmission, forfeiture etc. of
shares.
3. Share certificates and warrants
4. Rights of shareholders
5. Meeting of company.
6. Appointment, remuneration, qualification of Board of
directors.
7. Accounts and Audit
8. Dividends
9. Indemnity
10. Winding up

70
Contents of Articles
Articles of association may prescribe such regulations for the
company as the subscribers to the memorandum deem
expedient. The Act gives the subscribers a free hand. Any
stipulations as to the relations between the company and its
members, and between members inter se may be inserted in
the articles. But everything stated therein is subject to the
Companies Act. The document must not conflict with the
provisions of the Act. Any clause which is contrary to the
provisions of the Act or of any other law for the time being in
force, is simply inoperative and void. Section 439 of the
Companies Act, for example, confers the right on a
shareholder to petition for the winding up of the company in
certain circumstances. This cannot be excluded or limited by
the articles. Similarly, the articles cannot sanction something
which is forbidden by the Act. Section 205, for example,
declares that no dividend shall be paid by a company except
out of profits. The force of this section cannot be undone by
any provision in the articles of association.
71
Articles in relation to Memorandum
Articles have always been held subordinate to
the memorandum. If, therefore, the
memorandum and articles are inconsistent, the
articles must give way. In other words, articles
must not contain anything the effect of which is
to alter a condition contained in the
memorandum or which is contrary to its
provisions. This is so because the object of the
memorandum is to state the purpose for which
the company has been established, while the
articles provide the manner in which the
company is to be carried and its proceedings
disposed of.
72
Alteration Of Articles
Every company has a clear power to alter its articles of
association by a special resolution. It is a statutory power
given by section 31, and therefore, it cannot be negatived by
contract. If, for example, there is a clause in the articles
providing that the company would not introduce any change in
its original articles, it will be invalid on the ground that that it is
contrary to the statue.
Similarly, a company cannot deprive itself of the power of
alternation by a contract with any one
The altered articles will bind the members just in the same
way as did the original articles.
The power of alteration of articles as conferred by section 31
is almost absolute. It is subject only to two restrictions. In the
first place, alteration must not be in contravention of the
provisions of the Act. It should not be an attempt to do
something which the Act forbids. Secondly, the power of
alteration of articles is subject to the conditions contained in
the memorandum of association.
73
Constructive Notice Of Memorandum
And Articles Of Association
The memorandum and articles of association of every
company are registered with the registrar of companies.
The office of the Registrar is a public office and
consequently the memorandum and articles become
public documents. They are open accessible to all. It is,
therefore the duty of every person dealing with a
company to inspect its public documents and make sure
that his contract is in conformity with their provisions.
But whether a person actually reads them or not, he is
to be in the same position as if he had read them. He
will be presumed to know the contents of those
documents. This kind of presumed notice is called
constructive notice. Kotla Venkata Swami Vs. Ram
Murthi (1934) shows the practical effect of this rule.
74
The articles of association of a company required
that all deeds etc., should be signed by the
managing director on behalf of the Company. The
plaintiff accepted a deed of mortgage executed by
the secretary and a working director only. It was
held that the plaintiff could not claim under this
deed. The court observed : If the plaintiff had
consulted the articles she would have discovered
that a deed such as such as she took required
execution by three specified officers of the company
and she would have refrained from accepting a
deed inadequate signed. Notwithstanding,
therefore, she may have acted in good faith and her
money may have been applied to the purposes of
the company, the bond is nevertheless invalid.
75
Another effect of this rule is that a person
dealing with the company is taken not only to
have read those documents but to have
understood them according to their proper
meaning.
He is presumed to have understood not merely
the companys powers but also those of its
officers. Further, there is constructive notice not
merely of the memorandum and articles, but
also of all the documents, such as special
resolutions and particulars of charges which are
required by the Act to be registered with the
Registrar.
76
The Doctrine Of Indoor Management
The role of the doctrine of indoor management is
opposed to the principle of constructive notice. The
latter seeks to protect the company against the
outsiders, the former operates to protect the
outsiders against the company. The rule of
constructive notice is confined to the external
position of the company and, therefore, it follows
that there is no notice as to how the companys
internal machinery is handled by its officers. The
rule had its genesis in Royal British Bank Vs.
Turquand (1865)
77
The directors of a company borrowed a sum of money from the
plaintiff. The companys articles provided that the directors might
borrow on bonds such sums as may from time to time be
authorised by a resolution passed at a general meeting of the
company. The shareholders claimed that there had been no
such resolution authorising the loan and, therefore, it was taken
without their authority. The company was, however, held bound
by the loan. Once it was found that the directors could borrow
subject to a resolution, the plaintiff had the right to infer that the
necessary resolution must have been passed.

In Pacific Coast Coal Mines Ltd. Vs. Arbuthnot (1917), the
rule is thus stated If the directors have the powers and authority
to bind the company, but certain preliminaries are required to be
gone through on the part of the company before that power can
be duly exercised, then the person contracting with the directors
is not bound to see that all preliminaries have been observed.
He is entitled to presume that the directors are acting lawfully in
what they do.
78
The rule is based upon obvious reasons of
convenience and justice. Firstly, the memorandum
and articles of association are public documents,
open to the public inspection. But the details of
internal procedure are not thus open to public
inspection. Hence an outsider is presumed to know
the constitution of a company ; but not what may or
may not have taken place within the doors that are
closed to him. The wheel of commerce would not
go round smoothly if persons dealing with
companies were compelled ,to investigate
thoroughly the internal machinery of a company to
see if something is not wrong. People in business
would be very shy in dealing with such companies
79
The rule is of great practical utility. It has been
applied in a great variety of cases to secure justice.
It has been used to cover acts done on behalf of a
company by de facto directors who have never been
appointed, or whose appointment is defective, or
who, having been regularly appointed, have
exercised an authority which could have been
delegated, or who have exercised an authority
without proper quorum. Thus, where the directors of
a company having the power to allot shares only
with the consent of general meeting allotted them
without any such consent ; where the managing
director of a company granted a lease of the
companys properties, something which he could do
only with the approval of the board ; where the
managing agent having the power to borrow with
the approval of directors borrowed without any such
approval, the company was held liable.
80
Exceptions to indoor management
1. Knowledge of Irregularity
The first and the most obvious restrictions is that the rule has no
application where the party affected by an irregularity had actual
notice of it. Thus where a transfer of shares was approved by two
directors, one of whom within the knowledge of the transferor was
disqualified by reason of being transferee himself and the other was
never validly appointed, the transfer was held to be ineffective.
Knowledge of an irregularity may arise from the fact that the person
contracting was himself a party to the inside procedure. In Howard
Vs. Patent Ivory Manufacturing Co. (1888), for example, the
directors could not defend the issue of debentures to themselves
because they should have known that the extent to which they were
lending money to the company required the assent of the general
meeting which they had not obtained.
But apart from this, the principle is clear that a person who is himself
a part of the internal machinery cannot take advantage of
irregularities.

81
2. Forgery
The only clear illustration is Ruben Vs. Fingall Consolidated
(1906)
The plaintiff was the transferee of a share certificate issued
under the seal of the defendant company. The certificate was
issued by the companys secretary, who had affixed the seal of
the company and forged the signatures of two directors.
The plaintiff contended that whether the signatures were genuine
or forged was a part of the internal management and, therefore,
company should be estopped from denying genuineness of the
document. But it was held that the rule has never been extended
to cover such a complete forgery. LORD LOREBURN said :
It is quite true that person dealing with limited liability
companies are not bound to inquire into indoor
management and will not be affected by irregularities of
which they have no notice. But this doctrine, which is well
established applies to irregularities which otherwise might
affect a genuine transaction. It cannot apply to a forgery.
82
This statement has been regarded a dictum, as the case was
decided on the principle that the secretary did not have actual or
implied authority to represent that a forged document was a
genuine and, therefore, there was no estoppel against the
company. Hence, a general statement that the turquand rule.
does not apply to forgeries is not exactly warranted by the
present authorities.
In a case before the Madras High Court, a document on which a
company borrowed a sum of money was executed by the
managing director who was the chief functionary of the company
and, to comply with the requirements of the articles, the
signatures of the two other directors were forged, the company
was not allowed to eschew liability under the document. (Official
Liquidator Vs. Commr. of Police, 1969 ) The has held We
hold the company liable as a matter of social and economic
policy. The basis of liability is eminently practical view that if
authority is conditioned on facts peculiarly within the agents
knowledge, his representation express or implied should bind the
principal.
83
3. Acts outside apparent authority
Lastly, if the act of an officer of a company is one which
would ordinarily be beyond the powers of such an officer,
the plaintiff cannot claim the protection simply because
under the articles power to do the act could have been
delegated to him. In such a case the plaintiff cannot sue
the company unless the power has, in fact, been
delegated to the officer with whom he dealt. A clear
illustration is Annand Bihiari Lal Vs. Dinshaw & Co.
(1942)
The plaintiff accepted a transfer of a companys property
from its accountant. Since such a transaction is
apparently beyond the scope of an accountants
authority, it was void. Not even a delegation clause in
the articles could have validated it, unless he was, in
fact, authorised.
Prospectus
84
85
Prospectus
Statement in lieu of prospectus [S. 70]
One of the great advantages of promoting a company is that the
necessary capital for business can be raised from the general
public. This advantage is, however, enjoyed only by a public
company. A private company is, by its very constitution,
prohibited from inviting monetary participation of the public. But
even a public company need not necessarily go to the public for
money. The promoters may be confident of obtaining the
required capital through private contacts. In such case no
prospectus need be issued to the public. The promoters are only
required to prepare a draft prospectus containing the information
required to be disclosed by Schedule III of the Act. This
document is known as a statement in lieu of prospectus. A copy
of it must be filed with the Registrar at least three days before
any allotment of shares is made. This is intended to preserve an
authoritative record of the terms and conditions of the capital
issue. If the statement contains any misrepresentation the
liability, civil and criminal, is the same as in the case of a
prospectus.
86
Definition of Prospectus
Prospectus is defined by Section 2(36). A Prospectus
means any document described or issued as a
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 in or debentures
of a body corporate. Any advertisement offering to the
public shares or debentures of the for sale is a
prospectus. In a Calcutta case (Pramatha Nath Sanyal
Vs. Kali Kumar Dutt, 1925) an advertisement was
inserted in a newspaper stating :
Some shares are still available for sale according to the
terms of the prospectus of the company which can be
obtained on application. This was held to be a
prospectus as it invited the public to purchase shares.
The directors were accordingly convicted for not
complying with the requirements of the Act.
87
Public Issue
The provisions of the Act relating to prospectus are not
attracted unless the prospectus is issued. issued
means issued to the public. What does or does not
amount to an issue is a question of fact in each case and is
not capable of exact definition.
In Nash Vs. Lynde (1929) it was held that the term
issue is not satisfied by a single private
communication. The facts were that a document was
marked strictly private and confidential but in form of a
prospectus was prepared by the defendant, the managing
director of a company. But the document did not contain all
the material fact required by the Act to be disclosed. It was
held that this did not amount to an issue and
accordingly the plaintiffs action for compensation for
loss was dismissed.

88
The issue need not be made to the public as a
whole. An advertisement among a group or a
class of persons only would be an issue.
Accordingly, where 3,000 copies of a document
in form of a prospectus were sent out and
distributed among the members of certain gas
companies only, it was held to be an offer of
shares to the public. Section 67(1) of the Act
also provides that the term public includes any
section of the public, whether selected as
members or debenture holders of the company
concerned or as clients of the person issuing the
prospectus or in any other manner.
89
1. Every prospectus to be dated [Section 55)
Every prospectus has to be dated. This ensures a
prima facie evidence of the date of its publication.
2. Every prospectus to be registered [Section 60] A
copy of every prospectus has to be registered with the
Registrar of Companies. This preserves an
authoritative record of the terms and conditions of the
capital issue. Registration must be made on or before
the publication of the prospectus. The copy sent for
registration must be signed by every person who is
named in the prospectus as a director or a proposed
director of the company.
Contents of Prospectus
90
The copy for registration must be accompanied with ;
a. If a report of an expert is to be published, consent of the
expert ;
b. a copy of every contract relating to appointment and
remuneration of managerial personnel ;
c. the comments in writing of the person, if any, named in
the prospectus as the auditor, legal advisor, attorney,
solicitor, banker or broker of the company to act in that
capacity.
d. The prospectus must be issued within 90 days of its
registration. The company and every person who
knowingly issues a prospectus without registration is
punishable with fine which may extend to five thousand
rupees. It must be stated on the face of the prospectus
that it has been registered and that the requisite
documents, giving names, have been filed.

91
3. Experts Consent [ Section 58]
If the prospectus includes a statement purporting to
be made by an expert, a consent in writing of that
expert must be obtained and this fact should be stated
in the prospectus. The expert should not be one who
is himself engaged or interested in the formation or
management of the company.
Misstatement in prospectus

Every person authorising the issue of prospectus
has a primary responsibility to see that the
prospectus contains the true state of affairs and
does not give any fraudulent picture to the
publication.
Misstatement include
Untrue statement
Statements which produce wrong impression
Statements which are misleading
Concealment of material facts
Omission of facts
93
Remedies For Misrepresentation
Liability for misstatements may be civil or criminal

Who are liable ?
1. Every person who is the director of the company at the
time of issue of prospectus,
2. Every person who has authorised himself to be named
and is named in the prospectus either as a director or
having agreed to become a director
3. Every person who is a promoter of the company
4. Every other person who has authorised the issue of
prospectus.
Liability for
misstatements
in prospectus
Civil
Damages for
deceit
Rescission of
contract
Criminal
95
1. Damages for Deceit
Deceit is a tort. It means fraud. Any one who
has been induced to invest money in a company
by a fraudulent statement in a prospectus can
sue the persons responsible for issuing it. If his
action is successful he recovers full
compensation for the loss sustained by him
directly as a result of the fraud. But the burden of
proof lies on him to establish the following main
points of the action.
In the first place, the plaintiff must prove that
there was a fraudulent misstatement.
96
Secondly, the false representation must relate to some
existing facts which are material to the contract of
purchasing shares. The purpose for which the new
money is going to be used is an important fact. In
Edgingtone Vs. Fltzmaurice (1885)., for example
The directors of a company issued a prospectus inviting
subscriptions for debentures and stating that the objects
of the issue of debentures were to complete alterations
in the buildings of the company, to purchase horses and
vans and to develop the trade of the company. The real
object of the loan, however, was to enable the directors
to pay off pressing liabilities. Relying on the statement
the plaintiff advanced money. The company became
insolvent and the plaintiff sued the directors for fraud.
The directors argued that the suggestion of possible
purposes to which the money might be applied was not
a statement of existing facts. But they were held liable.

97
Thirdly, the plaintiff should have taken the shares directly from the
company by allotment. A purchaser of shares in the open market
has no remedy against the company or the promoters though he
might have bought on the faith of the representations contained in
the prospectus. This rule owes its origin to Peek Vs. Gurney
(1873)
A deceitful prospectus was issued by the defendants on behalf of
a company. The plaintiff received a copy of it but did not take any
shares originally in the company. The allotment was completed
and several months afterwards the plaintiff bought 2,000 shares
on the stock exchange. His action against the directors for deceit
was rejected. The office of a prospectus, the court said, is to
invite persons to become allottees, and, the allotment having been
completed, such office is exhausted and the liability to allottees
does not follow the shares into the hands of a subsequent
transferees. Directors cannot be made liable for all the
subsequent dealings which may take place with regard to those
shares upon the stock exchange .

98
2. Rescission for Misrepresentation
An allotment of shares can be avoided at the option
of the allottee if it was caused by misrepresentation
whether innocent or fraudulent. By avoiding the
contract he is able to get rid of his shares and claim
the money he paid for them. Further under Section
75 of the contract Act, a person who lawfully
rescinds a contract is entitled to compensation for
any damage which he has sustained through the
non-fulfilment of the contract. The action is against
the company to have the subscribers name
removed from the register of shareholders.
99
Criminal Liability for
Misrepresentation
Where a prospectus includes any untrue statement,
every person who authorised the issue of the
prospectus shall be punishable with imprisonment
for a term which may extend to two years, or with
fine which may extend to Fifty thousand rupees or
with both. A director prosecuted under this section
can defend himself by showing that the statement
was immaterial or he had reasonable ground to
believe and did up to the time of the issue of the
prospectus believe that the statement was true.
100
Derry Vs. Peek (1889)
A special Act incorporating a tramway company provided
that carriages might be moved by animal power and, with
the consent of the Board of Trade, by steam power. The
directors issued a prospectus containing a statement that
by their special Act, the company had the right to use
steam power instead of horses and that a saving would be
effected thereby. No reference was made to the Board of
Trade who refused their consent. Consequently, the
company had to be wound up. The plaintiff having taken
shares on the faith of the statement brought an action of
deceit against the directors. But they were held not liable.
The statement was certainly untrue because the power to
use steam was stated to be an absolute right, when in truth
it was conditional on the approval of the Board of trade.
But the directors honestly believed that once the Act of
Parliament had authorised the use of steam the consent of
the Board of Trade was practically concluded.

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