(Object Clause, Liability Clause)
Memorandum of association is the charter of the company and defines the scope of its activities. Memorandum of association defines the relation of the company with the rights of the members of the company interest and also establishes the relationship of the company with the members.
This section corresponds to sections 17 and 21 of the Companies Act, 1956 and section 11(4) of the Indian Companies Act, 1913 and section 18(1) of the English Companies Act, 1948. It has been made effective from 1-4-2014 vide Notification No. SO 902(E), dated 26-3-2014.
Any Company which intended to make any change to the Memorandum of Association (MOA) of its company, will have to comply with the provisions of Section- 13 of Companies Act, 2013 and any other applicable provisions of the Act and applicable rules.
Company can alter its Memorandum by way of alteration in following clause of Memorandum of Association:
- Name Clause
- Object Clause
- Capital Clause
- Registered Office Clause
- Liability Clause
- Subscription Clause
Note: * Every alteration made in the memorandum of a company shall be noted in every copy of the memorandum or articles, as the case may be.
A company may alter any contents of its memorandum by a special resolution and complying with the procedure specified in this section. However section 61 will be complied with for alteration of the capital clause of the memorandum.
“Alteration”. The expression ‘alter’ means to modify, change or vary; to make or become different; to change in character, appearance, etc; to change in some respect.
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)
- At the Board meeting, the given resolutions in respect of alteration in MOA must be passed.
- Get Approval to Alteration in Memorandum of Association and recommending the proposal for members’ consideration by way of special resolution.
- Fixing the date, time, and venue of the general meeting and authorizing a director or any other person to send the notice for the same to the members.
STEP- III: 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.
- 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- IV: 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- V: Filing of form with ROC: (Section 117)
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:-
- 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 Altered Memorandum of Associations.
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 Company can alter its ‘Subscription Clause’?
A Company in its life spam can’t alter the ‘Subscription Clause’ or can’t alter the ‘Subscriber Sheet’. Subscriber Sheet use at the time of Incorporation of Company shall be used for the life span of the Company.
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 email@example.com)