Registration & Incorporation of Company

SUBMITTED BY
FINI GRACE .E. TENISON
ROLL NO. 28
10TH BA. LL.B
 REGISTRATION AND INCORPORATION OF A
COMPANY

• A company becomes legal person only after registration or incorporation of and

getting certificate of incorporation from ROC.

• To register and incorporate a company, an application needs to be filed with

Registrar of Companies. (ROC)

• The application is to be accompanied by the names of the members, memorandum

of association and articles of association and other important documents.

FORMATION OF COMPANY (SEC. 3)

(i) A company may be formed for any lawful purpose by:

• 7 or more persons, where the company to be formed is to be a public company.

• 2 or more persons where the company to be formed is to be private company.

• 1 person where the company to be formed is to be one person company.

(ii) A company formed under sub-section 1 of sec.3 of the Act, 2013 may be either:

• A company limited by shares

• A company limited by guarantee

• An unlimited company
Formalities: Procedure (sec.7)

• Preparation of certain documents: The memorandum and article of association should be

prepared and printed and a copy of each of them has got to be stamped according to the stamp
act.

• A public company limited by shares may adopt Table A Schedule 1 of the act and in that case, it
need not prepare its own Article of Association.

• Signing of documents: The memorandum and articles are to be signed by at least 7 subscribers
in the case of public company and 2 in case of private company and by 1 person in case of one
person company.

• Each subscriber should give his address, description and occupation, no. of shares subscribed by
him.

• Such document must be signed in the presence of 1 witness who shall attest the signature.

• The document should also bear the date.

• Filing of certain documents : The following document should be filed with the ROC
within whose jurisdiction the registered office of the company is proposed to be
situated:
 The memorandum & articles of the company duly subscribed by the subscribers in the
manner prescribed.
 Declaration: a declaration in prescribed form by an advocate, chartered accountant, cost
accountant, or cs in practice, & by person named in article as director, manager or
secretary of the company that all the requirements of this act &rules made thereunder in
respect of registration & matter precedent or incidental there to have been complied
with it.
 Affidavit: a declaration by each of the subscribers to the memorandum & from the
persons named as 1st directors, that he is not convicted of any offence in connection
with promotion, formation, or management of any company or that he has not been
found guilty of any fraud or any breach of duty to any company under this act or any
previous company law during the preceding five years & all the documents filed with
the registrar for the registration of the company contain information that are correct and
true to the best of his knowledge &belief.
 The address of the correspondence till the registered office is established.
 The particulars of name, surname or family name, residential address, nationality etc, of
each subscriber to the memorandum. In case of subscriber being body corporate, such
particulars as may be prescribed.
 Particulars of the persons mentioned in the article as 1 st directors of the company, their
names including surname or family name, directors identification number, residential
address, nationality, proof of identification etc
 The particulars of the interests of the persons mentioned in the articles are the 1 st
directors of the company in other firms or bodies corporate along with their consent to
act as the directors of the company in such form and manner as prescribed.
1. The address of the registered office of the company
2. Particulars of directors & secretary
These documents not required for the registration of the company, but are filed along with
aforesaid documents. 1st has to be filed within 30 days of the incorporation, 2nd within 30
days of appointment, whether the company is public or private.
• Filing fee also to be deposited along with the aforesaid documents.
 Issue of certificate of registration sec. (7(2))
 ROC is satisfied that all the requirements have been duly complied with, will enter the name of
the company in the register of the companies maintained by him & issues a certificate of
incorporation to the company under his signature u/s 9 of the Companies Act, 2013
 Then the company becomes body corporate with a perpetual succession & a common seal from
the date of certificate.
 On the basis of documents and information filed , the registrar shall
• Register all the documents & information’s in the register
• Issue a certificate of incorporation in the prescribed form
• Allot the company a corporate identity number, which shall be a distinct identity of the
company & shall be included in the certificate (sec. 7(3))
No discretion of the registrar
 If the documents are in order & the object of the company is legal, the registrar has no
discretion in the matter & he must grant the certificate of incorporation.
 A writ of mandamus can be issued by the High Court to any of the subscribers, ordering the
registrar to issue the certificate of incorporation, since he is acting as quasi judicial authority in
the matter.
 No refund of fees: if the documents are returned for rectification & the applicant dropped
the matter he cannot claim refund of the fees paid for registration.
 Whether certificate of incorporation is subject to judicial review: generally they does
not fall within the purview of judicial review. However the courts of England have
explored the possibility of reviewing it.
R vs Registrar of Companies
Where a company happened to be registered for an unlawful object, it was ordered to struck off
because company cannot be properly be registered for an unlawful purpose.
In India the Kerala High Court in Moluk Mohammad vs. Capital Exchange, Kerala Ltd has
held that a writ cannot be issued to cancel the registration of a company under the companies
act.
Effect of Registration (sec.9):
 Company becomes a legal person
 Independent corporate existence
 Perpetual succession
 Capacity to sue & be sued
 Common seal.
 Procedure for incorporation of private company : it is same as that of the public company

except the following :

 Only two subscribers to the memorandum are necessary

 Form no. 29 is not required to be filed

 Registration of article of association is mandatory as it contains the condition of a private

company.

 The company shall carefully abide by the provisions of sec. 12 of the companies act, 2013

while preparing the memorandum & article of association

CONCLUSION
 A company after incorporation has a distinct legal entity & is independent of its
members.
 The liability of the members of a company is limited to the extent of unpaid amount on
the shares.
 A company enjoys perpetual succession & its life doesn't depend on the lives of the
members.
 Being a legal person company is capable of owning, enjoying & dispose the properties.
 A member of the company can sell his shares in the manner provided in the article of
association.
 Incorporated company has privilege of raising its capital by public subscriptions either
by way of debentures or shares.
 Incorporated company has capacity to sue & to be sued.