CS Divesh Goyal

(Name clause of Memorandum of Association)

SHORT SUMMARY:

A company being a legal entity must have a name of its own to establish its Separate identity. The name of the company is a symbol of its independent corporate existence. The first clause in the Memorandum of Association of the company states the name by which a company is known. The company may adopt any suitable name provided it is not undesirable.

INTRODUCTION:

The Company after incorporation can change their name by following way:

(a) Conversion of name from private to public, or

(b) Conversion of name from public to private, or

(c) Change of name from ABC limited to XYZ limited.

Change in Name clause of the Company involves alteration of Memorandum of Association (hereinafter referred to as “Memorandum”) of the Company. Section 13 of Companies Act 2013 regulates the process of amendment in Memorandum of Association is applicable to all companies. All clauses of Memorandum except Capital clause can be altered by following the provisions of Section 13 of Companies Act, 2013 by passing special resolution.

Section 13 of the Companies Act, 2013 deal with change of name which says that the name of the company can be changed by a special resolution and with the approval of the Central Government. Approval of Central Government is not required if the change relates to the addition/deletion of the words “private” to the name.

Sub Section- 2 of Section 4 of the Companies Act, 2013 provides that no company shall be registered by name which:

  • Is identical with or resemble too nearly to the name of an existing company registered under this Act or any previous company law, or: [Section- 2 (a)]
  • will constitute an offence under any law for the time being in force, or: [Section- 2 (b)(i)]
  • is undesirable in the opinion of the Central Government. [Section- 2 (b)(Ii)].

Sub Section-3 without prejudice (Effect) to the provisions of sub-section (2) [as given above], a company shall not be registered with a name which contains unless the previous approval of the Central Government has been obtained for the use of any such word or expression:

  • any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Central Government, any State Government, or any local authority, corporation or body constituted by the Central Government or any State Government under any law for the time being in force; or [Section- 3 (a)].
  • Such word or expression, as may be prescribed. [Section- 3 (b)].

Alteration of Name shall not allow to following Companies:

The change of name shall not be allowed to a company:

  • which has not filed annual returns or financial statements due for filing with the Registrar or
  • which has failed to pay or repay matured deposits or debentures or interest thereon

STEPS FOR ALTERATION IN MEMORANDUM OF ASSOCIATION:

STEP – I: Convey Board Meeting of Directors: (As per section 173 and SS-1)

  • Issue Notice of Board Meeting to all the directors of company at least 7 days before the date of Board Meeting.
  • Attach Agenda
  • Notes to Agenda
  • Draft Resolution

STEP – II: Held Board Meeting: (As per section 173 and SS-1)

  • Proposed new names for the company.
  • Pass Board Resolution after Selection of Names.
  • Authorize to Directors of Company to make Application with ROC for Name approval

STEP-III- File – e-form- RUN with ROC:

File form RUN with ROC for approval of name:

ATTACHMENTS:

√ Copy of Board Resolution.

√ Approval of Owner of Trade Mark or the applicant of such application

[If proposed name(s) are based on a registered Trade Mark or is a subject matter of an application pending for registration under the Trade Mark Act, 1999]

STEP-IV

1Name Approval Certificate from ROC, if applied name are available

STEP- V: Issue Notice of General Meeting: (Section 101)

Notice of EGM shall be given at least 21 days before the actual date of EGM. EGM can be called on Shorter Notice with the consent of at least majority in number and ninety five percent of such part of the paid up share capital of the company giving a right to vote at such a meeting:

  • All the Directors.
  • Members
  • Auditors of Company

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.

STEP- VI: Hold General Meeting: (Section 101)

  • Check the Quorum.
  • Check whether auditor is present, if not. Then Leave of absence is Granted or Not. (As per Section- 146).
  • Pass Special Resolution.[Section-114(2)]
  • Approval of Alteration in MOA.

STEP- VII: Filing of form with ROC: (Section 117)

A. File Form MGT-14 (Filing of Resolutions and agreements to the Registrar under section 117) with the Registrar along with the requisite filing within 30 days of passing the special resolution, along with given documents:-

1The name once approved valid for 60 days from the date of making of application.

ATTACHMENTS:

  • Certified True Copies of the Special Resolutions along with explanatory statement;
  • Copy of the Notice of meeting send to members along with all the annexure;
  • A printed copy of the Memorandum Article of Associations.

B. File Form INC – 24within 30 days of passing of Special Resolution

ATTACHMENTS:

  • Notice along with Explanatory Statements.
  • Certified True Copy of Special Resolution.
  • Altered in MOA & AOA.
  • Minutes of General Meeting

STEP- VIII: Issue of New Certificate:

After completing Above Procedure ROC will issue a New Certificate of Incorporation

A. Whether Stamp Duty required to pain on Alteration in Memorandum of Association (MOA)?

The Act does not contemplate new memorandum of association, and where it purports to be so, it is nothing more than a special resolution and as such does not require to be stamped.

B. Whether it is mandatory that name should reflect the Objects of the Company?

No it is not mandatory to reflect the objects of the Company in its Name. But if any word in name reflecting any business activity that should be companies objects only.

C. After approval of name up to what time name shall be available to use?

As per Companies Amendment Act, 2017 In case of alteration of Name. Name shall be reserved for 60 days from the date of approval of name.

SOME IMPORTANT POINTS:

I. A change of name under section 21 does not affect the rights and obligations of the company or render defective any legal proceedings by or against it, and any legal proceedings, which might have been continued or commenced by or against the company by its former name, may be continued by or against the company by its new name.

II. The company which has changed its name would be entitled to ask those companies in which it is holding shares, to substitute its old certificates by new ones

Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION

(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)

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(Republished with Amendments)

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Tags : Companies Act (2476) Companies Act 2013 (2249) Divesh Goyal (323)

22 responses to “Procedure -Change / Alteration of Name under Companies Act 2013”

  1. Abhiram says:

    Is there is a requirement to issue auditor certificate to certify rule 29 of companies rules have been complied with ??

  2. Aakanksha ganjoo says:

    Is it possible to rectify the name of company? I mean if there is mistake in company name can it b rectified? If yes what is the procedure?

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