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Change in MOA & AOA -Things to remember

Things to remember while altering/ Amending/ Changing Memorandum of Association (MOA) or Articles of Association (AOA) under Companies Act’2013.

CA Pratik Anand

Things to remember while altering/ Amending/ Changing Memorandum of Association (MOA) or Articles of Association (AOA) under Companies Act’2013.

This article contains important points to remember when altering/changing the MOA and AOA of a Company.

Memorandum of association contains following clauses:

(a) Name of the Company,

(b) State of India where registered office of the company is situated,

(c) Main objects of the Company and matters considered necessary in furtherance thereof,

(d) Liability of members of the company; and

(e) Authorised share capital of the company.

Every alteration in the MOA will be made only in these clauses, either in all or any of these clauses. Therefore the situations under which the MOA needs to be altered are:

  • Change in the name of the Company.
  • Change of registered office of the Company.
  • Change in Object Clause of the company.
  • Change in authorised capital of the company.
  • Change in the liability of the members of the company.

What is the procedure for alteration/Change in MOA under Companies Act’2013?

  • Alteration in the Memorandum of Association can be made by following the procedure under section 13 of the Companies Act’2013.
  • This section is applicable to all companies.
  • Hold board meeting to recommend the proposal for members’ consideration by passing special resolution.
  • Give notice of Extraordinary general meeting in which special resolution is to be passed. The notice shall specify the place, date, day and time of the meeting and contain a statement on the business to be transacted at the EGM.
  • Since alteration of the memorandum is a special business therefore an explanatory statement u/s 102 of the Companies Act’2013 shall be accompanied with the notice of the meeting in which special resolution is to be passed.
  • Special resolution: For alteration of any of the clauses of memorandum of association, except the capital clause, consent of members by way of special resolution is required. However, in case of alteration of authorised share capital, consent of members by way of ordinary resolution as stated in section 61 is required.
  • The company is required to file special resolution passed by shareholders for alteration of memorandum of association with the Registrar of Companies. Form MGT-14 has to be filed for registration of special resolution within 30 days of passing of resolution.
  • A certified copy of the special resolution alongwith notice and explanatory statement of the general meeting in which resolution is passed and the altered memorandum and articles are to be attached as attachments to the form MGT-14. Copy of approval from the central govt. filed with the registrar in case of change in name and registered office clauses of the memorandum.
  • Alteration made under section 13 shall not have any effect until it has been registered.

Adoption of new set of Memorandum and articles as per Companies Act’2013

Here another thing to be kept in mind while altering the Memorandum and articles is that the Registrar may ask for adoption of new set of memorandum and articles in line with the new Companies Act’2013.

Major reason for that is the change in format of Memorandum and articles under the previous act and the new act’2013.

Major difference between the memorandum under Companies Act’1956 and 2013 is the object clause. While the Object clause under the 1956 Format included three sub-clauses:

  • Main objects,
  • Incidental and ancillary objects and
  • Other objects

The format under the Companies Act’2013 includes only two sub clauses:

  • THE OBJECTS TO BE PURSUED BY THE COMPANY ON ITS INCORPORATION i.e Main Objects.
  • MATTERS WHICH ARE NECESSARY FOR FURTHERANCE OF THE MAIN OBJECTS.

Therefore while altering the object clause it is advisable for the company:

  • To amend the title of incidental object Clause of the Memorandum Of Association by passing the following resolution:
  • “Clause III (B) of the objects that are incidental or ancillary to the attainment of the main objects of the Memorandum of Association be and hereby replaced with the title “MATTERS WHICH ARE NECESSARY FOR FURTHERANCE OF THE OBJECTS SPECIFIED IN CLAUSE III (A) ARE:-
  • To Delete the other objects clause of the Memorandum Of Association:
  • Pursuant to the provisions of Section 4, 13 and all other applicable provisions, if any, of the Companies Act, 2013, (including any amendment thereto or re-enactment thereof), and subject to necessary approval(s) if any, from the competent authorities,the Other Objects Clause of the Memorandum of Association of the Company be removed by completely deleting the clause III (C ).

ADOPTION OF NEW SET OF ARTICLES OF ASSOCIATION

Pursuant to the provisions of Section 14 and other applicable provisions, if any, of the Companies Act, 2013, (including any amendment thereto or re-enactment thereof), the Articles of Association of the Company should be altered thereby replacing all the existing regulations with the new regulations.

The statutory backing for adopting new set of memorandum and articles is given in Section 6 of the Companies Act’2013 which is given as follows:

“(b) Any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be.”

Therefore, the provisions under the old memorandum/articles may be repugnant i.e contradictory/inconsistent with the provisions of the Companies Act’2013 and hence may be termed as void therefore it is advisable to adopt new set of memorandum and articles as per Companies Act’2013.

(The author is a CA in practice at Delhi and can be contacted at: E-mail: contact@capratikanand.com, Mobile: +91-9953199493)
Categories: Company Law

View Comments (7)

  • we want to incorporated following clause in our Company MOA. Pls advise EGM format
    To mortgage the property and assets of the company as securities for loans and/or any credit facilities to be given to any associate company or companies or third party and also to give guarantee securing liabilities of such associate company or companies and/or third party.

  • Hi, By mistake we had a typo error in the spelling of one of our director in MOA and AOA. How do we change the same. Please suggest

  • FOR A NEWLY INCORPORATED PVT LTD. COMPANY WHICH IS SUBSIDIARY OF A PARENT COMPANY ( HOLDING 99.9%) IF SOMEONE WANTS TO DISSOLVE THE PARENT/SUBSIDIARY STRUCTURE AND INSTEAD WANTS TO BRING IN CAPITAL(PAID UP) from the DIRECTORS OF THE SAME PARENT COMPANY IN INDIVIDUAL CAPACITY TO THE SUBSIDIARY what needs to be done does the MOA/AOA NEEDS TO BE AMENDED OR WHAT IS THE PROCEDURE FOR THE SAME? KINDLY HELP

    P.S. NO ROC FILLING HAS BEEN DONE OF THE SUBSIDIARY

    MUCH REGARDS

  • Dear sir

    I have one doubt regarding alteration of MOA and AOA while converting prive company into OPC and we are increasing the authorised share capital of the company.

    1. We conducted board meeting and passed resolutions for the above matters. After that we have conducted the annual general meeting instead of EGM.

    2. From the date of AGM we have to file MGT 14 and SH 7.

    3. We altered the MOA and AOA as applicable to the OPC.

    4. While filing SH7 we will attach the MOA and AOA of OPC.

    My question is, we are filing the SH 7 in the name of Privete limited company but we are attaching the altered MOA and AOA of OPC. It is correct way or not?

    Kindly request you to provide the solution for the above.

    With regards
    Govidsamy naidu

  • Hello Mr.Anand,

    We've Incorporated a Pvt. Ltd Company in the Month of March This year and we've recently applied for a "Name Change" and the RUN also got Approved.

    Now we're about to Submit the INC-24 & MGT -14 forms to complete the Name Change process, but we're facing an absurd situation over here.

    As part of the MGT-14, we need to attach the Updated MoA & AoA forms reflecting the New Company Name, and we're trying to fill the MoA & AoA forms downloaded from the MCA website with the Latest RUN Details, and further Copying the Other fields from the Old MoA & AoA, but our CA is saying that we should not do that way, and instead need to take a Printout of the Old MoA & AoA and Write / Paste New RUN Details & New Name of the Company on that Print-out & Scan that and Attach it to the MGT-14 form.

    He further claims that he should not Sign on these MoA & AoA, as during Incorporation they were signed by another CA. We're finding this extremely silly and naive talk.

    Can you please give a Clarity on how the MoA & AoA should be modified to Reflect the Name Change!

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