Section 2(62) of The Indian Companies Act 2013 defines a “One Person Company” means a company which has only one person as a member;
So it follows that a one person company shall have only one person as its member.
The Memorandum of Association of a one ‘One Person Company’ is to be drafted in the common format applicable to other types of companies and in the case of a Company Limited by Shares it has to be in the format under Table A of Schedule I and signed as follows
“I, whose name and address is given below, am desirous of forming a company in pursuance of this memorandum of association and agree to take all the shares in the capital of the company”
This implies that there shall be one member only and he shall agree to take all the shares.
Till now, the concept is very clear. Now move on to the provisions relating to the incorporation of Companies.
Section 3(1) of the Companies Act, 2013 is as follows;
“A company may be formed for any lawful purpose by—
(a) seven or more persons, where the company to be formed is to be a public company;
(b) two or more persons, where the company to be formed is to be a private company; or
(c) one person, where the company to be formed is to be One Person Company
that is to say, a private company, by subscribing their names or his name to a memorandum and complying with the requirements of this Act in respect of registration”
This seems to mean that as per clause (c), OPC can be formed by one person and it is a private company .
But what does the words ‘by subscribing their names’ signify.
Of course there is a requirement to name a nominee to become member in the OPC in the event of death or incapacitation of the person who is the member of the OPC.
In the memorandum the details of the nominee has to be given in the following manner;
“Shri/Smt………………, son/daughter of ………………….., resident of………… aged………… years shall be the nominee in the event of death of the sole member (Applicable in case of one person company)”
But he is only a nominee to the position of the member who would become the sole member in the event of death of incapacitation of the member.
Clause (c) of section 3 reads that OPC can be formed for any lawful purpose by subscribing their names or his name to a memorandum….
Now the moot point is “ Can OPC Have more than one member?