Incorporation of Company INCORPORATION OF COMPANY AND MATTERS INCIDENTAL THERETO
Table of content
- Introduction to Incorporation of Companies
- Formation of Company [Section 3]
- Incorporation of Company [Section 7]
- Incorporation of One Person Company
- Formation of Companies with Charitable Object, etc. [Section 8]
- Effect of Registaration
- Memorandum of Assocation - MOA [Section 4]
- Articles of Association - AOA [Section 5]
- Act to Override Memorandum Articles, etc. [Section 6]
- Effect of Memorandum and Articles [Section 10]
- Alteration of Memorandum [Section 13]
- Alteration of Articles [Section 14]
- Copies of Memorandum, Articles, etc., to be given to members [Section 17]
- Registered Office of Company [Section12]
- Commencement Of Business etc. [Section 10A]
- Rectification of Name of Company [Section 16]
- Conversion of Companies already Registered [Section 18]
- Subsidiary company not to hold shares in its holding company [Section 19]
- Service of Documents [Section 20]
- Authentication of Documents, Proceedings and Contracts [Section 21]
- Execution of Bills Of Exchange, etc. [Section 22]
1. INTRODUCTION TO INCORPORATION OF COMPANIES
A company is a separate legal entity with perpetual succession for lawful purpose. Development of this concept is equally significant in economic terms as invention of steam engine is for the industrial revolution.
Persons who initiate promotion of a company are known as promoters. All persons who take steps for the registration of a company e.g., those associated with the preparation of a prospectus or in drawing up the Memorandum of Association of the company and assisting in its registration are regarded as promoters.
The Companies Act, 2013 defines the term “Promoter” under section 2(69) which means a person—
(a) who has been named as such in a prospectus or is identified by the company in the annual return referred to in section 92; or
(b) who has control over the affairs of the company, directly or indirectly whether as a shareholder, director or otherwise; or
(c) in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act.
However, a person who is acting merely in a professional Capacity, shall not be regarded as promoter [under (c)], e.g., the solicitor, banker, accountant etc. are not regarded as promoters.
2. FORMATION OF COMPANY (SECTION 3)
As you can observe in above chart that companies could be with limited liability (by shares or guarantee) or with unlimited liability.
Note: For Government Companies, suffix “Pvt. Ltd / Ltd.” not required (Notification dated 5th June 2015). This exception shall be applicable to a government company which has not committed a default in filing its financial statements under section 137 or annual return under section 92 with the Registrar of companies [Notification dated 13th June 2017].
Section 3 of the Companies Act, 2013 deals with the basic requirement with respect to the constitution of the company. In the case of a public company with or without limited liability, any 7 or more persons (i.e. minimum number of shareholders) can form a company for any lawful purpose by subscribing their names to memorandum and complying with the requirements of this Act in respect of registration. In exactly the same way, 2 or more persons can form a private company and 1 person where company to be formed is one person company (OPC).
However, that one person company (OPC) need to specify the name of one nominee in the Memorandum of Association (MOA) who would take his place in case of his death or his incapacity to contract. The nominee could be changed as per the process and this will not attract process for alteration of the Memorandum of Association.
Formation of Company [Section 3]
(1) A company may be formed for any lawful purpose by—
(a) 7 or more persons, where the company to be formed is to be a public company;
(b) 2 or more persons, where the company to be formed is to be a private company; or
(c) 1 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.
The memorandum of One Person Company shall indicate the name of the other person (i.e. Nominee), with his prior written consent in the prescribed form, who shall, in the event of the subscriber's death or his incapacity to contract become the member of the company and the written consent of such person shall also be filed with the Registrar at the time of incorporation of the One Person Company along with its memorandum and articles.
However, such other person may withdraw his consent in such manner as may be prescribed.
The member of One Person Company (OPC) may at any time change the name of Nominee by giving notice in such manner as may be prescribed.
It shall be the duty of the member of One Person Company (OPC) to intimate the company the change, if any, in the name of the other person nominated by him by indicating in the memorandum or otherwise within such time and in such manner as may be prescribed, and the company shall intimate the Registrar any such change within such time and in such manner as may be prescribed.
However, any such change in the name of the person shall not be deemed to be an alteration of the memorandum.
(2) A company formed under sub-section (1) may be either—
(a)a company limited by shares; or
(b)a company limited by guarantee; or
(c)an unlimited company.
Members severally liable in certain cases [Section 3A]
- If at any time the number of members of a company is reduced,
in the case of a public company, below 7,
in the case of a private company, below 2,
and the company carries on business for more than six months while the number of members is so reduced, then
- every person who is a member of the company during the time that it so carries on business after those six months and is cognizant (aware) of the fact that it is carrying on business with less than seven members or two members, as the case may be,
- shall be severally liable for the payment of the whole debts of the company contracted during that time (after six months) and may be severlly sued therefore
3. INCORPORATION OF COMPANY [SECTION 7]
INCORPORATION OF COMPANY: Section 7 of the Companies Act, 2013 provides for the procedure to be followed for incorporation of a company.
Steps for Incorporation
- Reservation of name by filing e-applications
- Drafting & signing of MOA & AOA and its submission to ROC. These documents have to be e-filed and e-stamped
- Consent of persons nominated as directors to act as directors to be submittted electronically
- Submission of statutory declaration of compliances and other declarations
- Pay fees and amount of stamp duty electronically
- Obtain certificate of incorporation digitally signed by ROC
- File declaration about address of Registered office
(1) Filing of the documents and information with the registrar: For the registration of the company following documents and information are required to be filed with the registrar within whose jurisdiction the registered office of the company is proposed to be situated—
• the memorandum of association and articles of association of the company duly signed by all the subscribers to the memorandum.
• a declaration by person who is engaged in the formation of the company (an advocate, a chartered accountant, cost accountant or company secretary in practice) and by a person named in the articles (director, manager or secretary of the company), that all the requirements of this act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with.
• a declaration from each of the subscribers to the memorandum and from persons named as the first directors, if any, in the articles stating that—
- he is not convicted of any offence in connection with the promotion, formation or management of any company, or
- he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the last five years,
- and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief;the address for correspondence till its registered office is established;
• the particulars (names, including surnames or family names, residential address, nationality) of every subscriber to the memorandum along with proof of identity, and in the case of a subscriber being a body corporate, such particulars as may be prescribed.
• the particulars (name, including surname or family name, the Director Identification Number (DIN), residential address, nationality) of the persons mentioned in the articles as the first directors and such other particulars including proof of identity as may be prescribed; and
• the particulars of the interests of the persons mentioned in the articles as the first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form and manner as may be prescribed.
(2) Issue of certificate of incorporation on registration: The Registrar on the basis of documents and information filed, shall register all the documents and information in the register and issue a certificate of incorporation in the prescribed form to the effect that the proposed company is incorporated under this Act.
(3) Allotment of Corporate Identity Number (CIN): On and from the date mentioned in the certificate of incorporation, the Registrar shall allot to the company a corporate identity number, which shall be a distinct identity for the company and which shall also be included in the certificate.
(4) Maintenance of copies of all documents and information: The company shall maintain and preserve at its registered office copies of all documents and information as originally filed, till its dissolution under this Act.
(5) Furnishing of false or incorrect information or suppression of material fact at the time of incorporation (i.e. during incorporation process): If any person furnishes any false or incorrect particulars of any information or suppresses any material information, of which he is aware in any of the documents filed with the Registrar in relation to the registration of a company, he shall be liable for action for fraud under section 447.
(6) Company already incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact (i.e. post Incorporation): where, at any time after the incorporation of a company, it is proved that the company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company, or
by any fraudulent action, the promoters, the persons named as the first directors of the company and the persons making declaration under this section shall each be liable for action for fraud under section 447.
(7) Order of the Tribunal : Where a company has been got incorporated by furnishing false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company or by any fraudulent action, the Tribunal may, on an application made to it, on being satisfied that the situation so warrants—
- pass such orders, as it may think fit, for regulation of the management of the company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or
- direct that liability of the members shall be unlimited; or
- direct removal of the name of the company from the register of companies; or
- pass an order for the winding up of the company; or
- pass such other orders as it may deem fit:
Provided that before making any order,—
- the company shall be given a reasonable opportunity of being heard in the matter; and
- the Tribunal shall take into consideration the transactions entered into by the company, including the obligations, if any, contracted or payment of any liability.
Simplified Proforma for Incorporating Company Electronically (SPICe)
The Ministry of Corporate Affairs has taken various initiatives for ease of business. In a step towards easy setting up of business, MCA has simplified the process of filing of forms for incorporation of a company through Simplified Proforma for incorporating company electronically.
4. INCORPORATION OF ONE PERSON COMPANY
Law with respect to formation of OPC provides that—
- The memorandum of OPC shall indicate the name of the other person (nominee), who shall, in the event of the subscriber’s death or his incapacity to contract, become the member of the company.
- The other person (nominee) whose name is given in the memorandum shall give his prior written consent in prescribed form and the
- same shall be filed with Registrar of companies at the time of incorporation along with its Memorandum of Association and Articles of Association.
- Such other person (nominee) may be given the right to withdraw his consent.
- The member of OPC may at any time change the name of such other person (nominee) by giving notice to the company and the company shall intimate the same to the Registrar.
- Any such change in the name of the person shall not be deemed to be an alteration of the memorandum.
- Only a natural person who is an Indian citizen and resident in India-
- shall be eligible to incorporate One Person Company (OPC);
- shall be a nominee for the sole member of One Person Company (OPC).
Explanation I - For the purposes of this rule, the term "resident in India" means a person who has stayed in India for a period of not less than 182 days during the immediately preceding financial year.
- A natural person shall not be a member of more than one OPC at any point of time and the said person shall not be a nominee of more than one OPC.
- Where a natural person being member in OPC becomes member in another such company by virtue of his being a nominee in that OPC, such person shall meet eligibility criteria (as given in point above) within a period of 182 days.
- No minor shall become member or nominee of the OPC or can hold share with beneficial interest.
- Such Company cannot be incorporated or converted into a company under section 8 of the Act. Though it may be converted to private or public companies in certain cases. The procedure of conversion is given in the rules 6 & 7 of Chapter II.
- Such Company cannot carry out Non-Banking Financial Investment activities including investment in securities of anybody corporate.
- OPC can not convert voluntarily into any kind of company unless two years have expired from the date of incorporation, except where the paid up share capital is increased beyond fifty lakh rupees or its average annual turnover during the relevant period exceeds two crore rupees.
Example 1: Rajesh has formed a ‘One Person Company (OPC)’ with his wife Roopali as nominee. For the last two years, his wife Roopali is suffering from terminal illness and due to this hard fact he wants to change her as nominee. He has a trusted and experienced friend Ramnivas who could be made nominee or his (Rajesh) son Rakshak who is of seventeen years of age. In the instant case, Rajesh can appoint his friend Ramnivas as nominee in his OPC and not Rakshak because Rakshak is a minor.
Example 2: Abha formed a ‘One Person Company (OPC)’ on 15th October, 2017 with her husband Akhil as nominee and Rs. 10 lacs as Authorised and paid-up share capital. In the month of April, 2018 she got in touch with a foreigner and is expecting to receive a substantial export order by May, 2018 whose final delivery must be completed by December, 2018. She is contemplating to convert her OPC into a private limited company before she receives the export order in May 2018. In this case, Abha cannot voluntarily convert her OPC into a private limited company before expiry of two years from 15-10-2017 i.e. upto 14th October, 2019.
5. FORMATION OF COMPANIES WITH CHARITABLE OBJECTS, ETC.[SECTION 8]
- Object of formation of Section 8 Company : Section 8 of the Companies Act, 2013 deals with the formation of companies which are formed to promote the charitable objects of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment etc. Such company intends to apply its profit in promoting its objects and prohibiting the payment of any dividend to its members.
- Power of Central government to issue the license: This section allows the Central Government to register such person or association of persons as a company with limited liability without the addition of words ‘Limited’ or ‘Private limited’ to its name, by issuing licence on such conditions as it deems fit. The registrar shall on application register such person or association of persons as a company under this section. ‘Where it is proved to the satisfaction of the Central Government that a limited company registered under this Act or under any previous company law has been formed with any of the objects and with the restrictions and prohibitions it may, by licence, allow the company to be registered under section 8 subject to such conditions as the Central Government deems fit and to change its name by omitting the word Limited, or as the case may be, the words Private Limited from its name and thereupon the Registrar shall, on application, in the prescribed form, register such company under this section and all the provisions of this
section shall apply to that company’.
- Privileges of limited Company: On registration, the company shall enjoy same privileges and obligations as of a limited company.
- A firm may be a member of the company registered under section 8.
- Alteration of Memorandum and Articles: A company registered under this section shall not alter the provisions of its memorandum or articles except with the previous approval of the Central Government.
- Conversion into any other kind of Company: A company registered under this section may convert itself into company of any other kind only after complying with such conditions as may be prescribed. A company registered under section 8 which intends to convert itself into a company of any other kind shall pass a special resolution at a general meeting for approving such conversion.
- Revocation of license-
(i) The Central Government may by order revoke the licence of the company where the company contravenes any of the requirements or the conditions of this sections subject to which a licence is issued or where the affairs of the company are conducted fraudulently, or in violation of the objects of the company or prejudicial to public interest, and on revocation, the Registrar shall put ‘Limited’ or ‘Private Limited’ against the company’s name in the register. But before such revocation, the Central Government must give it a written notice of its intention to revoke the licence and opportunity to be heard in the matter.
(ii) Where a licence is revoked, the Central Government may, by order, if it is satisfied that it is essential in the public interest, direct that the company be wound up under this Act or amalgamated with another company registered under this section.However, no such order shall be made unless the company is given a reasonable opportunity of being heard.
(iii) Where a licence is revoked and where the Central Government is satisfied that it is essential in the public interest that the company registered under this section should be amalgamated with another company registered under this section and having similar objects, then, notwithstanding anything to the contrary contained in this Act, the Central Government may, by order, provide for such amalgamation to form a single company with such constitution, properties, powers, rights, interest, authorities and privileges and with such liabilities, duties and obligations as may be specified in the order.
(iv) If on the winding up or dissolution of a company registered under this section, there remains, after the satisfaction of its debts and liabilities, any asset, they may be transferred to another company registered under this section and having similar objects, subject to such conditions as the Tribunal may impose, or may be sold and proceeds thereof credited to the Insolvency and Bankruptcy Fund formed under section 224 of the Insolvency and Bankruptcy Code, 2016.
(v) A company registered under this section shall amalgamate only with another company registered under this section and having similar objects.
- Penalty/ punishment in contravention: If a company makes any default in complying with any of the requirements laid down in this section, the company shall, be punishable with fine varying from ten lakh rupees to one crore rupees and the directors and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to three years or with fine varying from twenty-five thousand rupees to twenty-five lakh rupees, or with both. And where it is proved that the affairs of the company were conducted fraudulently, every officer in default shall be liable for action under section 447.
(i) Can call its general meeting by giving a clear 14 days notice instead of 21 days.(ii)Requirement of minimum number of directors, independent directors etc. does not apply.
(ii) Requirement of minimum number of directors, independent directors etc. does not apply.
(iii) Need not constitute Nomination and Remuneration Committee and Shareholders Relationship Committee.
6. EFFECT OF REGISTRATION [SECTION 9]
Section 9 of the Companies Act, 2013 provides for the effect of registration of a company.
According to section 9, from the date of incorporation (mentioned in the certificate of incorporation), the subscribers to the memorandum and all other persons, who may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum. Such a registered company shall be capable of exercising all the functions of an incorporated company under this Act and having perpetual succession with power to acquire, hold and dispose of property, both movable and immovable, tangible and intangible, to contract and to sue and be sued, by the said name.
From the date of incorporation mentioned in the certificate, the company becomes a legal person separate from the incorporators; and there comes into existence a binding contract between the company and its members as evidenced by the Memorandum and Articles of Association [Hari Nagar Sugar Mills Ltd. vs. S.S. Jhunjhunwala]. It has perpetual existence until it is dissolved by liquidation or struck out of the register. A shareholder who buys shares, does not buy any interest in the property of the company but in certain cases a writ petition will be maintainable by a company or its shareholders.
A legal personality emerges from the moment of registration of a company and from that moment the persons subscribing to the MOA and other persons joining as members are regarded as a body corporate or a corporation in aggregate and the legal person begins to function as an entity. A company on registration acquires a separate existence and the law recognizes it as a legal person separate and distinct from its members [State Trading Corporation of India vs. Commercial Tax Officer].
It may be noted that under the provisions of the Act, a company may purchase shares of another company and thus become a controlling company. However, merely because a company purchases all shares of another company, it will not serve as a means of putting an end to the corporate character of another company and each company is a separate juristic entity [Spencer & Co. Ltd. Madras vs. CWT Madras].
As stated above, the law recognizes such a company as a juristic person separate and distinct from its members. The mere fact that the entire share capital has been contributed by the Central Government and all its shares are held by the President of India and other officers of the Central Government does not make any difference in the position of registered company and it does not make a company an agent either of the President or the Central Government [Heavy Electrical Union vs. State of Bihar].
7. MEMORANDUM OF ASSOCIATION – MOA [SECTION 4]
As per section 2(56) memorandum means the memorandum of association (MOA) of a company as originally framed or as altered from time to time in pursuance of any previous company law or of this Act;
It is the base document for the formation of the company and along with, the Articles of Association (AOA) is regarded as the Constitution of the Company.
The MOA and AOA, similar to other company agreements and resolutions is subject to the Companies Act, 2013 (Section 6) and the law of the land and therefore all its contents need to be in compliance of the Companies Act, 2013 and other applicable legislations.
Section 4 of the Companies Act, 2013 seeks to provide for the requirements with respect to memorandum of a company.
I. Object of registering a memorandum of association:
- It contains the object for which the company is formed and therefore identifies the possible scope of its operations beyond which its actions cannot go.
- It enables shareholders, creditors and all those who deal with company to know what its powers are and what activities it can engage in.
- A memorandum is a public document under Section 399 of the Companies Act, 2013. Consequently, every person entering into a contract with the company is presumed to have the knowledge of the conditions contained therein.
- The shareholders must know the purposes for which his money can be used by the company and what risks he is taking in making the investment.
A company cannot depart from the provisions contained in the memorandum however imperative may be the necessity for the departure. It cannot enter into a contract or engage in any trade or business, which is beyond the power confessed on it by the memorandum. If it does so, it would be ultra vires the company and void.
II. The memorandum of a company shall state—
- In relation to the name clause- the name of the company with the last word “Limited” in the case of a public limited company, or the last words “Private Limited” in the case of a private limited company. Exception: This clause is not applicable on the companies formed under section 8 of the Act.
- In relation to the Registered Office Clause- the State in which the registered office of the company is to be situated;
In relation to the Object Clause- the objects for which the company is proposed to be incorporated and any matter considered necessary in furtherance thereof;
III. Liability / Capital Clause:
(a) This clause covers details on the liability of members of the company, whether limited or unlimited, and also state-
in the case of a company limited by shares, that the liability of its members is limited to the amount unpaid, if any, on the shares held by them; and
in the case of a company limited by guarantee, the amount up to which each member undertakes to contribute-
- to the assets of the company in the event of its being wound-up while he is a member or within one year after he ceases to be a member, for payment of the debts and liabilities of the company or of such debts and liabilities as may have been contracted before he ceases to be a member, as the case may be; and
- to the costs, charges and expenses of winding-up and
- for adjustment of the rights of the contributories among themselves;
(b) in the case of a company having a share capital—
The clause, in the case of One Person Company, covers the name of the person (nominee) who, in the event of death of the subscriber, shall become the member of the company.
- the amount of share capital with which the company is to be registered and the division thereof into shares of a fixed amount and the number of shares which the subscribers to the memorandum agree to subscribe which shall not be less than one share; and
- the number of shares each subscriber to the memorandum intends to take, indicated opposite his name;
IV. Name Clause
Applying for the name of the company: The name stated in the memorandum shall not—
(a) be identical with or resemble too nearly to the name of an existing company registered under this Act or any previous company law; or
(b) be such that it’s use by the company—
- will constitute an offence under any law for the time being in force; or
- is undesirable in the opinion of the Central Government.
(c) Undesirable Names: A company shall not be registered with a name which contains—
- 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
- such word or expression, as may be prescribed, unless the previous approval of the Central Government has been obtained for the use of any such word or expression.
As per rule 8 of Companies (Incorporation) Rules, 2014, the following words and combinations thereof shall not be used in the name of a company unless the previous approval of the Central Government has been obtained for the use of any such word or expression-
If the proposed name include words such as ‘Insurance’, ‘Bank’, ‘Stock Exchange’, ‘Venture Capital’, ‘Asset Management’, ‘Nidhi’, ‘Mutual fund’ etc., unless a declaration is submitted by the applicant that the requirements mandated by the respective regulator, such as IRDA, RBI, SEBI, MCA etc. have been complied with by the applicant;
(d) Reservation of name:
Applying for name: A person may make an application, in such form and manner and accompanied by such fee, as may be prescribed, to the Registrar for the reservation of a name set out in the application as—
(i) the name of the proposed company; or
(ii) the name to which the company proposes to change its name.
Reserving the name: Upon receipt of an application under sub-section (4), the Registrar may, on the basis of information and documents furnished along with the application, reserve the name for a period of twenty days from the date of approval or such other period as may be prescribed.
Provided that in case of an application for reservation of name or for change of its name by an existing company, the Registrar may reserve the name for a period of sixty days from the date of approval.
Cancelling name: Where after reservation of name, it is found that name was applied by furnishing wrong or incorrect information, then—
- if the company has not been incorporated, the reserved name shall be cancelled and the person who has made the application shall be liable to a penalty which may extend to one lakh rupees;
- if the company has been incorporated, the Registrar may, after giving the company an opportunity of being heard—
(1) either direct the company to change its name within a period of 3 months, after passing an ordinary resolution;
(2) take action for striking off the name of the company from the register of companies; or
(3) make a petition for winding up of the company.
Example 3: Mr. Anil Desai, has applied for reservation of company name with a prefix “Sanwariya”. He claimed that the Prefix “Sanwariya” is registered trademark in his name. Later on, it is found that the said prefix is not registered with Mr. Anil Desai, however, he has formed company by giving incorrect documents/information while applying the name of the company.
In such case, The Registrar shall take action as per the provisions of the act after giving opportunity of being heard.
Circular: As per the General Circular No. 29/2014, dated 11th of July, 2014, Government directed that while allotting names to Companies/Limited Liability Partnerships, the Registrar of Companies concerned should exercise due care to ensure that the names are not in contravention of the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950. It is necessary that Registrars are fully familiar with the provisions of the said Act.
Note: Rule 8–Undesirable Names of the Companies (Incorporation) Rules, 2014, determines whether a proposed name is identical with another or other rules which may be kept in mind while dealing with the Name clause of the MOA.
V. Domicile Clause
The name of federal state is mentioned where the registered office is to be situated. Registered office is the permanent address of the company. It is residence of company.
VI. Objects Clause
Covers the objects for which the company is proposed to be incorporated and any matter considered necessary in furtherance thereof.
VII. Subscription Clause:
According to section 7(1)(a) there shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be situated, the memorandum and articles of the company duly signed by all the subscribers to the memorandum in such manner as may be prescribed in Rule 13 of the Companies (Incorporation) Rules, 2014.
VIII. Forms and schedule related to Memorandum:
The memorandum of a company shall be in respective forms specified in Tables A, B, C, D and E in Schedule I as may be applicable to such company.
The MOA and AOA shall be in respective forms as provided in Schedule I to the Companies Act, 2013:
|TABLE||MEMORANDUM OF ASSOCIATION|
|A||OF A COMPANY LIMITED BY SHARES|
|B||OF A COMPANY LIMITED BY GUARANTEE AND NOT HAVING A SHARE CAPITAL|
|C||OF A COMPANY LIMITED BY GUARANTEE AND HAVING A SHARE CAPITAL|
|D||OF AN UNLIMITED COMPANY AND NOT HAVING SHARE CAPITAL|
|E||OF AN UNLIMITED COMPANY AND HAVING SHARE CAPITAL|
|F||OF A COMPANY LIMITED BY SHARES|
|G||OF A COMPANY LIMITED BY GUARANTEE AND HAVING A SHARE CAPITAL|
|H||OF A COMPANY LIMITED BY GUARANTEE AND NOT HAVING SHARE CAPITAL|
|I||OF AN UNLIMITED COMPANY AND HAVING A SHARE CAPITAL|
|J||OF AN UNLIMITED COMPANY AND NOT HAVING SHARE CAPITAL|
8. ARTICLES OF ASSOCIATION – AOA [SECTION 5]
As per Section 2(5) articles means the articles of association of a company as originally framed or as altered from time to time or applied in pursuance of any previous company law or of this Act.
Actually, article of association of a company contains internal rules and regulations of the company.
Section 5 of the Companies Act, 2013 seeks to provide the contents and model of articles of association. The section lays the following law—
- Contains regulations: The articles of a company shall contain the regulations for management of the company.
- Inclusion of matters: The articles shall also contain such matters, as are prescribed under the rules. However, a company may also include such additional matters in its articles as may be considered necessary for its management.
- Entrenchment: Usually an article of association may be altered by passing special resolution but entrenchment makes it more difficult to change it. So entrenchment means making something more protective.
Contain provisions for entrenchment: The articles may contain provisions for entrenchment to the effect that specified provisions of the articles may be altered only if conditions or procedures as that are more restrictive than those applicable in the case of a special resolution, are met or complied with.
Manner of inclusion of the entrenchment provision: The provisions for entrenchment shall only be made either on formation of a company, or by an amendment in the articles agreed to by all the members of the company in the case of a private company and by a special resolution in the case of a public company.
Notice to the registrar of the entrenchment provision: Where the articles contain provisions for entrenchment, whether made on formation or by amendment, the company shall give notice to the Registrar of such provisions in such form and manner as may be prescribed.
- Forms of articles: The articles of a company shall be in respective forms specified in Tables, F, G, H, I and J in Schedule I as may be applicable to such company.
- Model articles: A company may adopt all or any of the regulations contained in the model articles applicable to such company.
- Company registered after the commencement of this Act: In case of any company, which is registered after the commencement of this Act, in so far as the registered articles of such company do not exclude or modify the regulations contained in the model articles applicable to such company, those regulations shall, so far as applicable, be the regulations of that company in the same manner and to the extent as if they were contained in the duly registered articles of the company.
- Section not apply on company registered under any previous company law: Nothing in this section shall apply to the articles of a company registered under any previous company law, unless amended under this Act.
9. ACT TO OVERRIDE MEMORANDUM, ARTICLES, ETC. [SECTION 6]
According to section 6 of the Act,
‘Save as otherwise expressly provided in this Act—
- the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act; and
- any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant (in conflict) to the provisions of this Act, become or be void, as the case may be.’
In simple words, the provisions of this Act shall have overriding effect. But keep in mind that this section starts with “Save as otherwise ….”. It means that if any other section of the Act says that article is superior then we will treat it accordingly.
Example 4: Section 47 of the Act deals with voting power of members. And a notification dated 5th June, 2015 says that section 47 is applicable to a private company subject to its Article of Association (AOA). Now if AOA of a private company says that section 47 is not applicable to it then, in this case AOA will become superior and section 47 of the Act will not be applicable.
10. EFFECT OF MEMORANDUM AND ARTICLES [SECTION 10]
- Subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed by the company and by each member, and contained covenants on its and his part to observe all the provisions of the memorandum and of the articles.
It means that, on the basis of MOA and AOA:
a) Company is liable to members
b) Members are liable to company
c) But normally members are not liable to each other
- All monies payable by any member to the company under the memorandum or articles shall be a debt due from him to the company. [For example a company can recover calls in arrear from a member as forcefully as it is recovering loan due.
11. ALTERATION OF MEMORANDUM [SECTION 13]
As per Section 2(3), alter or alteration includes the making of additions, omissions and substitutions.
I. Procedure of alteration of memorandum: Section 13 of the Companies Act, 2013 provides the provisions that deals with the alteration of the memorandum. The provision says that—
- Alteration by special resolution: Company may alter the provisions of its memorandum with the approval of the members by a special resolution.
- Name change of the company: Any change in the name of a company shall be effected only with the approval of the Central Government13 in writing.
However, no such approval shall be necessary where the change in the name of the company is only the addition/deletion of the word “Private”, on the conversion of any one class of companies to another class in accordance with the provisions of the Act.
According to the Companies (Incorporation) Rules, 2014:
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.
The change of name shall be allowed upon filing necessary documents or payment or repayment of matured deposits or debentures or interest thereon as the case may be.
- Entry in register of companies: On any change in the name of a company, the Registrar shall enter the new name in the register of companies in place of the old name and issue a fresh certificate of incorporation with the new name and the change in the name shall be complete and effective only on the issue of such a certificate.
- Change in the registered office: The alteration of the memorandum relating to the place of the registered office from one State to another shall not have any effect unless it is approved by the Central Government14 on an application in such form and manner as may be prescribed.
- Dispose of the application of change of place of the registered office: The 15Central Government shall dispose of the application of change of place of the registered office within a period of 60 days.
Before passing of order, Central Government may satisfy itself that-
(a) the alteration has the consent of the creditors, debenture-holders and other persons concerned with the company, or
(b) the sufficient provision has been made by the company either for the due discharge of all its debts and obligations, or
(c) adequate security has been provided for such discharge.
- Filing with Registrar: A company shall, in relation to any alteration of its memorandum, file with the Registrar—
(a) the special resolution passed by the company under sub-section (1);
(b) the approval of the Central Government under sub-section (2), if the alteration involves any change in the name of the company.
- Filing of the certified copy of the order with the registrar of the states: Where an alteration of the memorandum results in the transfer of the registered office of a company from one State to another, a certified copy of the order of the Central Government approving the alteration shall be filed by the company with the Registrar of each of the States within such time and in such manner as may be prescribed, who shall register the same.
- Issue of fresh certificate of incorporation: The Registrar of the State where the registered office is being shifted to, shall issue a fresh certificate of incorporation indicating the alteration.
- Change in the object of the company: A company, which has raised money from public through prospectus and still has any unutilized amount out of the money so raised, shall not change its objects for which it raised the money through prospectus unless a special resolution through postal ballot is passed by the company and—
(a) the details, in respect of such resolution shall also be published in the newspapers (one in English and one in vernacular language) which is in circulation at the place where the registered office of the company issituated and shall also be placed on the website of the company, if any, indicating there in the justification for such change;
(b) the dissenting shareholders shall be given an opportunity to exit by the promoters and shareholders having control in accordance with regulations to be specified by the Securities and Exchange Board of India.
- Registrar to certify the registration on the alteration of the objects: The Registrar shall register any alteration of the memorandum with respect to the objects of the company and certify the registration within a period of 30 days from the date of filing of the special resolution.
- Alteration to be registered: No alteration made under this section shall have any effect until it has been registered in accordance with the provisions of this section.
- Only member have a right to participate in the divisible profits of the company: Any alteration of the memorandum, in the case of a company limited by guarantee and not having a share capital, intending to give any person a right to participate in the divisible profits of the company otherwise than as a member, shall be void.
II. Alteration noted in every copy: Every alteration made in the memorandum or articles of a company shall be noted in every copy of the memorandum or articles, as the case may be. If a company makes any default in complying with the stated provisions, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every copy of the memorandum or articles issued without such alteration. [Section 15]
|MOA Clause ||Members Resolution||External approvals||Outcomes||Applicability|
|Name Clause||Special resolution||Approval of Central Government and subject to Section 16||New incorporation certificate issued by ROC||Not applicable where only word “Private” is added or deleted on company class conversion|
|Domicile clause||Special Resolution||Approval of Central Government required only when registered office is changed from one state to another||The central Governmnent shall dispose of the application within a period of sixty days and before passing its order may satisfy itself that the consent of the creditors, debenture holders and other persons concerned or that the sufficient provision has seen made for the due discharge or that adequate security has been provided for discharge of obligations|| |
|Objects Clause||Special Resoultion||-||A company, whic has raised money from public through prospectus and still has any unutilised amount out of the money so raised, shall not change its objects for which it raised the money through prospectus unless a special resolution is passed by thecompany and-|
- the details, as may be prescribed in respect of such resolution shall also be published in the newspaper (on ein english and one in vernacular language) which is in circulaion at the place where the registeredoffice of the company is situated and shall also be placed on the website of the company, if any, indicating there in the justifivation for such change
- the dissenting shareholders shall be given an opportunity to exit by the promoters and shareholders having control in accordance with regulations to be specified by the securities and exchange board
|Liability/capital clause||Special Resolution||-||Any alteration of the memorandum, in the case of a company limited by guarantee and not having a share capital purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member, shall be void|| |
12. ALTERATION OF ARTICLES [SECTION 14]
I. Section 14 of the Companies Act, 2013, vests companies with power to alter or add to its articles. A company cannot divest itself of these powers [Andrews vs. Gas Meter Co.  1 Ch. 161]. Matters as to which the memorandum is silent can be dealt with by the alteration of article. Section 14 of the Companies Act, 2013 vests companies with power to alter or add to its articles. The law with respect to alteration of articles is as follows:
- Alteration by special resolution: Subject to the provisions of this Act and the conditions contained in its memorandum, if any, a company may, by a special resolution alter its articles.
- Alteration to include conversion of companies: Alteration of articles include alterations having the effect of conversion of—
(a) a private company into a public company; or
(b) a public company into a private company.
Even where a company being a private company alters its articles in such a manner that they no longer include the restrictions and limitations which are required to be included in the articles of a private company under this Act, then such company shall, as from the date of such alteration, cease to be a private company.
Provided further that any alteration having the effect of conversion of a public company into a private company shall not be valid unless it is approved by an order of the Central Government on an application made in such form and manner as may be prescribed.
Provided also that any application pending before the Tribunal, as on the date of commencement of the Companies (Amendment) Ordinance, 2019, shall be disposed of by the Tribunal in accordance with the provisions applicable to it before such commencement.
- Filing of alteration with the registrar: Every alteration of the articles and a copy of the order of the Central Government approving the alteration, shall be filed with the Registrar, together with a printed copy of the altered articles, within a period of fifteen days in such manner as may be prescribed, who shall register the same.
- Any alteration made shall be valid: Any alteration of the articles registered as above shall, subject to the provisions of this Act, be valid as if it were originally contained in the articles.
II. Alteration noted in every copy: Every alteration made in articles of a company shall be noted in every copy of the articles, as the case may be. If a company makes any default in complying with the stated provisions, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every copy of the articles issued without such alteration. [Section 15]
13. COPIES OF MEMORANDUM, ARTICLES, ETC., TO BE GIVEN TO MEMBERS [SECTION 17]
According to section 17, every company on being so requested by a member, shall send copies of the following documents within seven days of the request on the payment of fees—
- the memorandum;
- the articles; and
- every agreement and every resolution referred in section 117 (Resolutions and agreements to be filed), if and in so far as they have not been embodied in the memorandum and articles.
In case of default, the company and every officer who is in default shall be liable for each default, to a penalty of one thousand rupees for each day during which such default continues or one lakh rupees, whichever is less.
14. REGISTERED OFFICE OF COMPANY [SECTION 12]
A company is considered to be a separate legal entity from the members. Once a company gets incorporated, it is required to maintain a registered office. This is a physical office where the corporation will receive service of legal documents from ROC or in case of a lawsuit, etc. This address cannot be a P.O. box but must be a physical location where someone is present, to receive service of legal documents during normal business hours. It could be different from a Head Office or Corporate office.
Section 12 of the Companies Act, 2013 seeks to provide for the registered office of the companies for the communication and serving of necessary documents, notices letters etc. The domicile and the nationality of a company is determined by the place of its registered officer. This is also important for determining the jurisdiction of the court.
- Registered office: A company shall, within thirty days of its incorporation and at all times thereafter, have a registered office capable of receiving and acknowledging all communications and notices as may be addressed to it.
- Verification of registered office: The company shall furnish to the Registrar verification of its registered office within a period of thirty days of its incorporation.
- Labeling of company:
Every company shall—
(a) paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in a conspicuous position, in legible letters, and if the characters employed are not those of the language/s in general use in that locality, then also in the characters of that language/s.
(b) have its name engraved in legible characters on its seal, if any;
(c) get its name, address of its registered office and the Corporate Identity Number along with telephone number, fax number, if any, e-mail and website addresses, if any, printed in all its business letters, billheads, letter papers and in all its notices and other official publications; and
(d) have its name printed on hundies, promissory notes, bills of exchange and such other documents as may be prescribed:
- Name change by the company: Where a company has changed its name/s during the last two years, it shall paint or affix or print, along with its name, the former name or names so changed during the last two years.
- In case of OPC: The words ‘‘One Person Company’’ shall be mentioned in brackets below the name of such company, wherever its name is printed, affixed or engraved.
- Notice of change to registrar: Notice of every change of the situation of the registered office, verified in the manner prescribed, after the date of incorporation of the company, shall be given to the Registrar within 30 days of the change, who shall record the same.
- Change by passing of special resolution: The registered office of the company shall be changed only by passing of special resolution by a company, outside the local limits of any city, town or village where such office is situated or where it may be situated later by virtue of a special resolution passed by the company.
- Change of registered office outside the jurisdiction of registrar: Where a company changes the place of its registered office from the jurisdiction of one Registrar to the jurisdiction of another Registrar within the same State, there such change is to confirmed by the Regional Director on an application made by the company.
- Communication and filing of confirmation: The confirmation of change of registered office from jurisdiction of one registrar to another registrar within the same state, shall be–
(a) communicated within 30 days from the date of receipt of application by the Regional Director to the company, and
(b) the company shall file the confirmation with the Registrar within a period of 60 days of the date of confirmation who shall register the same, and
(c) certify the registration within a period of thirty days from the date of filing of such confirmation.
- Certificate, a conclusive evidence of compliance of requirements of this Act: The certificate shall be conclusive evidence that all the requirements of this Act with respect to change of registered office have been complied with and the change shall take effect from the date of the certificate.
- In case of default: If any default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every day during which the default continues but not exceeding one lakh rupees. [Sub- section (8)]
- If the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may cause a physical verification of the registered office of the company in such manner as may be prescribed and if any default is found to be made in complying with the requirements of sub-section (1), he may without prejudice to the provisions of sub-section (8), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.
15. COMMENCEMENT OF BUSINESS ETC. [SECTION 10A]
As per Rule 23A [Declaration at the time of commencement of business] of the Companies (Incorporation) Rules, 2014,the declaration under section 10A by a director shall be in prescribed form with prescribed fees and the contents of the said form shall be verified by a Company Secretary or a Chartered Accountant or a Cost Accountant, in practice.In the case of a company pursuing objects requiring registration or approval from any sectorial regulators such as the Reserve Bank of India, Securities and Exchange Board of India, etc., the registration or approval, as the case may be from such regulator shall also be obtained and attached with the declaration.
- A company incorporated after the commencement of the Companies (Amendment) Ordinance, 2019 and having a share capital shall not commence any business or exercise any borrowing powers unless—
(a) a declaration is filed by a director within a period of 180 days of the date of incorporation of the company in such form and verified in such manner as may be prescribed, with the Registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and
(b) The company has filed with the Registrar a verification of its registered office as provided in sub-section (2) of section 12.
- If any default is made in complying with the requirements of this section, the company shall be liable to a penalty of fifty thousand rupees and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues but not exceeding an amount of one lakh rupees.
- Where no declaration has been filed with the Registrar under clause (a) of sub-section (1) within a period of one hundred and eighty days of the date of incorporation of the company and the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may, without prejudice to the provisions of sub-section (2), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.
16. RECTIFICATION OF NAME OF COMPANY [SECTION 16]
According to Section 16
- If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name which, —
(a) in the opinion of the Central Government, is identical with or too nearly resembles the name by which a company in existence had been previously registered, whether under this Act or any previous company law, it may direct the company to change its name and the company shall change its name or new name, as the case may be, within a period of three months from the issue of such direction, after adopting an ordinary resolution for the purpose;
(b) on an application by a registered proprietor of a trade mark that the name is identical with or too nearly resembles to a registered trade mark of such proprietor under the Trade Marks Act, 1999, made to the Central Government within 3 years of incorporation or registration or change of name of the company, whether under this Act or any previous company law, in the opinion of the Central Government, is identical with or too nearly resembles to an existing trade mark, it may direct the company to change its name and the company shall change its name or new name, as the case may be, within a period of 6 months from the issue of such direction, after adopting an ordinary resolution for the purpose.
- Where a company changes its name or obtains a new name under sub-section (1), it shall within a period of 15 days from the date of such change, give notice of the change to the Registrar along with the order of the Central Government, who shall carry out necessary changes in the certificate of incorporation and the memorandum.
- If a company makes default in complying with any direction—
|Company||Fine of 1,000 rupees for every day during which the default continues|
|Every officer who is in default||Fine varying from 5,000 rupees to 1 lakh rupees|
17. CONVERSION OF COMPANIES ALREADY REGISTERED [SECTION 18]
According to Section 18 of the Companies Act, 2013, a company may convert itself in some other class of company by altering its memorandum and articles of association. Following is the law with respect to the conversion of the companies already registered.
- By alteration of memorandum and articles: A company of any class registered under this Act may convert itself as a company of other class under this Act by alteration of memorandum and articles of the company in accordance with the provisions of this Chapter.
- File an application to the Registrar: Wherever such conversion of companies is required to be done, the company shall file an application to the Registrar, who shall after satisfying himself that the provisions applicable for registration of companies have been complied with, close the former registration of the company.
- Issue a certificate of incorporation: After registering the required documents, issue a certificate of incorporation in the same manner as its first registration.
- No effect on the debts, liabilities etc. incurred before conversion: The registration of a company under this section shall not affect any debts, liabilities, obligations or contracts incurred or entered into, by or on behalf of the company before conversion and such debts, liabilities, obligations and contracts may be enforced in the manner as if such registration had not been done.
18. SUBSIDIARY COMPANY NOT TO HOLD SHARES IN ITS HOLDING COMPANY [SECTION 19]
As per Section 19 of the Companies Act, 2013,
(1) No company shall, either by itself or through its nominees, hold any shares in its holding company and no holding company shall allot or transfer its shares to any of its subsidiary companies and any such allotment or transfer of shares of a company to its subsidiary company shall be void.
Provided that nothing in this sub-section shall apply to a case—
- where the subsidiary company holds such shares as the legal representative of a deceased member of the holding company; or
- where the subsidiary company holds such shares as a trustee; or
- where the subsidiary company is a shareholder even before it became a subsidiary company of the holding company:
However, the subsidiary company referred to in the preceding proviso shall have a right to vote at a meeting of the holding company only in respect of the shares held by it as a legal representative or as a trustee, as referred to in clause (a) or clause (b) of the said proviso.
(2) The reference in this section to the shares of a holding company which is a company limited by guarantee or an unlimited company, not having a share capital, shall be construed as a reference to the interest of its members, whatever be the form of interest.
Example 5: RPIP Ltd. has invested 51% in the shares of SSP Pvt. Ltd. on 31st March 2019. SSP Pvt. Ltd. have been holding 2% equity of RPIP Ltd. since 2013. SSP Pvt. Ltd. cannot increase its equity beyond that 2% on or after 31st March 2019. However, it could continue to hold or reduce its initial 2% stake.
19. SERVICE OF DOCUMENTS [SECTION 20]
Section 20 of the Companies Act, 2013, provides the mode in which documents may be served on the company, on the members and also on the registrars.
Law with respect to the service of documents is as follows—
(1) Serving of document to company: A document may be served on a company or an officer thereof by sending it to the company or the officer at the registered office of the company by-
- registered post, or
- speed post, or
- courier service, or
- leaving it at its registered office, or
- means of such electronic or other mode as may be prescribed.
However, where securities are held with a depository, the records of the beneficial ownership may be served by such depository on the company by means of electronic or other mode.
(2) Serving of document to registrar or member: Save as provided in this Act or the rules made thereunder for filing of documents with the Registrar in electronic mode, a document may be served on Registrar or any member by sending it to him by—
- Post, or
- registered post, or
- speed post, or
- courier, or
- by delivering at his office or address, or
- by such electronic or other mode as may be prescribed.
However, a member may request for delivery of any document through a particular mode, for which he shall pay such fees as may be determined by the company in its annual general meeting.
Explanation—For the purposes of this section, the term “courier” means a person or agency which delivers the document and provides proof of its delivery.
Exemption-Section 20 (2) shall apply to a Nidhi Company, subject to the modification that in the case of a Nidhi, the document may be served only on members who hold shares of more than ` 1,000 in face value or more than 1% of the total paid-up share capital of the Nidhis whichever is less.
For other shareholders, document may be served by a public notice in newspaper circulated in the district where the Registered Office of the Nidhi is situated; and publication of the same on the notice board of the Nidhi. [Notification dated 5th June, 2015.]
As per the Companies (Incorporation) Rules, 2014,
1. The term “electronic transmission” means a communication that creates a record that is capable of retention, retrieval (recovery) and review, and which may thereafter be rendered into clearly legible tangible form. It may be made by—
- facsimile telecommunication (fax) or electronic mail(email), which the company or the officer has provided from time to time for sending communications,
- posting of an electronic message board or network that the Registrar or the member has designated for those communications, and which transmission shall be validly delivered upon the posting, or
- other means of electronic communication, in respect of which the company or the officer has put in place reasonable systems to verify that the sender is the person purporting to send the transmission.
2. In case of delivery by post, such service shall be deemed to have been effected—
- in the case of a notice of a meeting, at the expiration of 48 hours after the letter containing the same is posted; and
- in any other case, at the time at which the letter would be delivered in the ordinary course of post.
20. AUTHENTICATION OF DOCUMENTS, PROCEEDINGS AND CONTRACTS [SECTION 21]
As per section 21 of the Companies Act, 2013, a document or proceeding requiring authentication by a company or contracts made by or on behalf of a company may be signed by–
- any key managerial personnel, or
- an officer or employee of the company duly authorized by the Board in this behalf.
21. EXECUTION OF BILLS OF EXCHANGE, ETC. [SECTION 22]
- A bill of exchange, hundi or promissory note shall be deemed to have been made, accepted, drawn or endorsed on behalf of a company if made, accepted, drawn, or endorsed in the name of, or on behalf of or on account of, the company by any person acting under its authority, express or implied.
- A company may, by writing under its common seal, if any, authorize any person, either generally or in respect of any specified matters, as its attorney to execute other deeds on its behalf in any place either in or outside India.
However, in case a company does not have a common seal, the above authorization shall be made by 2 directors or by a director and the Company Secretary, wherever the company has appointed a Company Secretary.
- A deed signed by such an attorney on behalf of the company and under his seal shall bind the company.