Enforcement and amalgamation (registration) of the company
Incorporation of Company and Promotion
Construction Company “(Formation of Company). Companies are artificial persons created by law. Hence many legal formalities have to be completed for its construction. From the idea of setting up the company, the actions taken by the company between starting a business can be divided into the following four parts, stages or stages.
(A) The state of enforcement of the company
(B) state of amalgamation or registration
(C) Status of obtaining certificate of amalgamation
(D) The stage of obtaining the certificate of commencement of business.
Company Enforcement Status
(Stage of Promotion of Company)
Enforcement means from the beginning. This is the first stage of the formation of the company. This stage refers to the idea of establishing a company in the mind of a person or individuals. Enforcement is the first step in the search, investigation, aggregation and establishment of the company.
According to Prof. 0 E 0 S 0 glissando, “Enforcement of the four elements-looking check trade in According to” Enforcement of Finance “Grtonberg find the answer related Savsr capital for the purpose of obtaining benefits above, property and management art trade opportunities in enforcement Search is done and goes. ”
Act or categories of enforcement
Functions or Stages of Promotion
The following are mainly done in enforcement
(1) Idea search and preliminary research, (business search)
(2) To conduct a detailed investigation.
(3) Gathering necessary goods.
(4) To arrange capital.
(5) To obtain permission from the Central Government for the issue of capital.
(6) Initial contract.
(7) Preparation of necessary documents.
(8) Determining the name of the company.
State of amalgamation
Stage of Incorporation
Amalgamation or registration is the second stage of the formation of a company. The date of registration is the birthday of the company. To register a company, the following forms have to be submitted to the registrar
(1) Councilor (Memorandum of Association) – This is the most important form. No company can be registered without it. This is a form in which the name of the company, address of the registered office, purpose and work of the company, share capital, limit of liability of the members etc. is mentioned. This form must be signed by 7 persons in the case of a public company and 2 persons in the case of a private company.
(2) Councilor Articles – How to achieve the objectives given in Councilor Seamanium is described in this form. This form is also signed with the witness of those persons who sign the Councilor Seamanium. Not every company issues it. In the absence of this, the rules of “Table-A” apply. In such a situation, while sending the Councilor Seemanium to the Registrar, it should be registered without any content.
(3) According to the Companies (Amendment) Act, 1988, relating to the appointment of managerial employees, if the company proposes to appoint a person as a managing director, full-time operator or manager, then the contract relating to the appointment is to the Registrar. have to present.
(4) List of Directors – The list of operators is also one of the forms to be sent to the registrar. This list contains the names, addresses and other details related to those persons who are ready to become the directors of the company. It is not necessary for a private company to send such a list. In the case of a public company, it is necessary to have at least three names.
(5) Written Consent of the Directors – For a public company, it is necessary that the written consent of such operators should also be attached to these forms which will assume the position of the proposed operator of the company. If a company was previously private and has now become a public company, it would not have to take this action.
( 6 ) To make written assurance-operators of qualifying share of operators, it is necessary to purchase a certain number of shares, which are called qualifying shares. Therefore, there should be a written assurance from the proposed operators that they will take the qualifying portions and pay them.
(7) In the forms sent for information-amalgamation of the registered office of the company, it is mentioned that where will the office of the company be? If this is not the case, the Registrar should inform the Registered Office of the Company within 30 days from the date of amalgamation or commencement of work (whichever is earlier).
(8) statutory declaration ( Statutory Declaration) – This is a High Court, Supreme Court lawyer or a chartered accountant who belong to manufacturing companies or mentioned in Antrniamon company director, secretary or manager after storing the necessary forms A declaration of intention has to be filed that the company has completed all statutory proceedings related to registration. .
(1) Fixed Fees – Along with filing the above forms with the Registrar for amalgamation, a certain fee has to be sent. This fee and its payment are deposited in the accounts of the Governments of India with the Reserve Bank of India.
The status of the amalgamation certificate is submitted to the Registrar’s Office when all the forms related to the company along with the prescribed fee are examined by the Registrar and when he is satisfied that all the statutory proceedings related to the formation of the company and When the formalities have been completed, he writes the name of the company in his register, that is, registers the company and gives a certificate to this effect, which is called ‘Certificate of Amalgamation’. Now the company becomes an amalgamated entity and an artificial person having separate statutory existence from its members.
Status of starting a business. (Stage of Commencement of Business) – A private company can start its business immediately after the amalgamation. But the public company cannot start its business till it gets the certificate of starting the business. Section 11 of the Companies Act, 2013 requires a public company to fulfill the following requirements in order to obtain a certificate of commencement of unma business.
(1) If the entry has been issued, work on issuing the entry to the public cannot commence its business till (i) shares are allocated equal to the minimum subscription amount, (ii) the operators have taken over The applicants do not pay the amount demanded till the allotment, (iii) No money will be given or payable to the applicants for not giving the application or not getting permission in any stock exchange till the time given in the entry. Shall be, and (iv) the Company Secretary or any operation should not declare that the above requirements have been met.
(2) If the entry has not been issued – if the company does not issue the statement, the company is not entitled to commence business unless (i) the substitute entry is submitted to the registrar, (ii) the operator by himself Do not pay the amount demanded till the allocation on the shares taken, and (iii) the company secretary or directors should not declare that the above requirements have been met.
Certificate of Commencement of Business – On fulfillment of the requirements mentioned above, the Registrar of Companies issues a certificate of commencement of business, which is a definite certificate that the company is entitled to commence the business.
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Meaning and definition of company promoter
Meaning and Definition of Company Promotor
According to Section 2 (69) of the Companies Act, 2013, a person in whose mind the idea of establishing a company arises and who performs all the activities of the company on its own responsibility before it is called a promoter. There is no definition of the word promoter in the Companies Act, but on the basis of the work done by it in company formation, it can be said that the promoter means a person who works and operates a company according to certain qualifications. is . Various scholars have given its definition as follows
Cock Burn- “A promoter is one who builds a company for certain purposes and takes necessary actions to achieve its objective.”
Guthaman A NDA Dugl- “promoter is the person who collects as a going concern capital and materials.”
It is clear from the above analysis that a promoter is the originator of the company. .
Role and functions of promoters
(Role and Functions of Promoters)
Following are the roles of promoters in relation to the promotion of a company
(1) To generate the idea of building a company.
(2) To establish a relationship with the seller.
(3) Preparation of report of experts.
(4) To search for such persons who sign the Councilor Seamanium and give their consent to become the first Director.
(5) To decide the name of the company, the location of the head office, the purpose of the company, the amount of capital and the contract with the purchasers.
(6) To select bankers, auditors, brokers and legal advisors etc.
(7) Preparation of Councilor Seemanium and Councilor Articles and sent to the Registrar.
(8) To obtain a certificate of amalgamation.
(9) To publish the entry.
( 10) To make arrangements for the issue of capital.
(11) If you want to buy any ongoing business, then negotiate for it.
(12) To make an agreement in the interest of the company with the seller, the purchasers and the managing agent etc.
(13) To obtain a certificate of commencement of business from the Registrar.
(14) To pay the initial expenses. . .
(15) To manage the publication and advertisement of Pravivaran magazine.
(16) Managing the Minimum Subscription.
In this way, whatever action is to be taken from the start of the company till the start of business, they are usually the promoters.
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Rights of promoters
(Rights of Promoters)
(1) Right to incur initial expenditure – The expenditure incurred on all the works till the amalgamation of the company is done by the promoters, which is called the initial expenditure. The promoter has the right to receive such expenses from the company. But if the company does not pay these initial expenses to the promoter, then the promoter cannot file suit against the company.
(2) Right to receive proportionate amount from co-promoters – If one of the co-promoters has to be compensated on the basis of false statement in the entry, the promoter can get proportionate amount from the co-promoter.
(3) Right to get remuneration – Leo – I mrane d tashi of the functions related to the enforcement of the company are officers while the promoter has unregulated this effect after amalgamation with the company in respect of the remuneration payable to the company promoter. The amount of money can be given in the form of shares, debentures, cash, purchase commission of properties and profit on purchase of property. For this it is necessary that the remuneration paid to the promoter must be mentioned in the entry.
Duties and responsibilities of promoters
(Duties and Liabilities of Promoters)
(1) Not making secret profit – the promoter would have a trustworthy relationship with the company. Therefore, the promoter should not earn any secret profit from the company in any way.
(2) To reveal all the facts – the work done during the construction of the company, the ties. If the promoter has any interest or benefit from the practices then it is his duty to disclose all the facts related to his interests and benefits to the company otherwise he will be considered guilty of fraud. (3) Surrender of profits – If the promoter has made any secret profit in any behavior related to the company during enforcement, without disclosing his interests, it is his duty. To return that profit to the company.
(4) Not making profit by selling personal property – It is the duty of the promoter not to make an unfair profit by selling his personal assets to the company.
(5) Manifesting personal interest and benefits — while working for the company, if the promoter has any personal interest, interest or benefit in the purchase or sale of any property in any contract or in any other dealings of the company, it is his duty. He should disclose it otherwise he will be held guilty of breach of duty.
(6) Liability for fraud in the entry The promoters, who participate in the issuance of the disclosure, are liable to the shareholders for the fraud committed in the entry.
(7) Liability on Insolvency – Even if the originator is insolvent, the amount of his liability can be recovered from his property.
(8) Economic punishment and punishment- If the promoter violates the provisions in the Companies Act, then he will be both financially and punishable. For example – if there is any misrepresentation in the entry, then for this, a penalty of 2 years or Rs. 5,000 on each promoter. There may be sting or both types of punishment.
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Promoter’s Statutory Status
(Legal Position of Promoter)
The promoter cannot be an agent of the company as the company does not exist until he is the promoter, while there is no agent without the owner. Therefore, the promoter company is not an enforcement and amalgamation (registration) / 23 agent of the company. The promoter cannot be a trustee of the company as the company does not exist before. As a result, the promoter also has a trusted relationship with the company.
Lord Lindley has given the following five things regarding the legal status of the promoters
(1) Trusted relationship – The promoter has a trustworthy relationship with the company and with those whom he or she inspires to become a shareholder of the company.
(2) Forcing the contract – After the company is formed, the operators of the company can bind the promoters with any contract which the promoters have made in the case of enforcement of the company.
(3) Operators not to be personally liable – If the operators have acted in the interests of the company with due care and honesty under their rights, then they are not personally liable for the losses which the company promoters Because of mistakes and mistakes made.
(4) Termination of contract on the basis of misrepresentation. On becoming a company, the promoters can pay various expenses to the promoters, but in case of non-payment, the promoter cannot sue the company to get these expenses. Because the promoter is induced to join the contract on the basis of falsification of facts, it can be terminated, even if such falsification is not fraudulent.
(5) Non-termination of meaningless contracts after the change of position of the parties-a. The futile contract cannot be terminated after the change in the position of the parties. If the promoters enter into an agreement with the company, they cannot bind the company to that contract unless they tell the company all the necessary facts of the contract that the company must know.
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Types of promoters
(Types of Promoters)
(1) Professional Promoters – The main business of such promoters is to promote new companies. They are skilled in enforcement work
And with remuneration, they build the company through their expert services.
(2) Occasional Promoters – Their main business is nothing else but the enforcement of companies. Sometimes on some occasion they act as enforcement
And is interested in building the company.
(3) Financial Promoters – Promoters who provide financial assistance in enforcement work to obtain financial benefits. They are called financial promoters.
(4) Technical Promoters – Due to technical knowledge, such people become promoters in the company.
(5) Specialized Institutions – The specific institutions that are established to act as promoters of companies are the Companies Acts / 24 called Specialized Institutions. Like – National Industrial Development Corporation
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Amalgamation of company
(Meaning of Incorporation of Company)
According to the Indian Companies Act, for the amalgamation of the company, the Registrar of that state (where the company will have its registered office) has (i) Councilor Seamanium, (ii) Councilor Articles, (iii) the written consent of the operators to make the operator, (iv) ) Written consent of operators to take qualification portion, (v) Notice of registered office of the company, (vi). All the above forms including legal declaration, and (vii) fixed fee are to be submitted. The Registrar, after his satisfaction, writes the name of the company in its register and gives the company a certificate to the effect that the company has been registered. In this way the company is amalgamated.
Amalgamation effects
(Consequences fo Incorporation)
(1) The company becomes an amalgamated entity.
(2) There is an agreement between the company and the members.
(3) After amalgamation the company can file suit on the other parties and the other party on the company.
(4) The company has a permanent existence.
(5) The company has a separate existence.
(6) The money payable by the members is treated as the debt of the company. (7) After amalgamation the company becomes a statutory person. (8) Irregularities before amalgamation do not make amalgamation pointless.
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Certificate of amalgamation
(Certificate of Incorporation)
According to Section 9 of the Companies Act, 2013, “After registration of the company, the Registrar gives a certificate under its signatures and stamp of office, which is called ‘Certificate of amalgamation'”. It states that the company has been amalgamated.
This certificate mentions the following things (i) Full name of the company (ii) Liability of the members of the company (iii) Date of issue of certificate of amalgamation of the company. (iv) The amount of the stamp. ‘(v) The seal (seal) of the Registrar’s Office. (vi) Registrar’s seal with his signature.
Sample amalgamation certificate
(Specimen Certificate of Incorporation)
Number …………. date ……………
I certify that ………… Company Limited has been amalgamated to the present day under the Companies Act 2013 and is a limited liability company. ……… (date and month) this certificate was issued from my hand. Soul signature of the company registrar
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Certificate of amalgamation – to be a definitive proof
(Certificate of Incorporation : A Conclusive Evidence)
According to the Companies Act, the amalgamation certificate is a definite proof that all the legal proceedings related to the amalgamation of the company have been completed and the company has been registered with the Registrar.
The amalgamation certificate is a definitive proof in relation to the following things.
- Councilors have been made under the provisions of Seemanium and Enterprise Companies Act.
- Every signatory of the Councilor Border Rule took inscribed portions before his name.
- The amalgamation of the company is done properly.
(iv) The company is a private or public company and the liability of its members is limited. All the formalities of the Companies Act have been completed in relation to the registry of the company and the subjects related to it. If it is later discovered that some kind of fraud has been committed, the certificate of amalgamation will be a definite proof of amalgamation. In addition to the above, if the following errors are found, the certificate of amalgamation is considered to be a proof of certainty.
(i) Changes have been made after the signatures of the members in the Councilor Seamanium and before registration.
(ii) All signatories must be minor.
- All signatures on Councilor Seamanium should be fraudulent.
- Company’s purpose should be illegal. Conclusion- It is clear from the above discussion that since the amalgamation of the company, it is considered conclusive proof that the amalgamation of the company has been done properly, even if there is any irregularity. The existence of the company cannot be challenged after the amalgamation certificate is issued. In this way, the certificate of amalgamation of the company is a proof of the existence of the Companies Act / 26 to issue the company, but the irregularities before the amalgamation are not proof.
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Promoter’s relationship with the company
(Relationship of Promoter with the Company)
An promoter has the following type of relationship with the company
(1) Promoter with Fiduciary Relation Company. There are trusted relationships. In other words, it can be said that the promoters of the company have trustworthy relationships with the company and with those whom they have attracted to become shareholders. This relationship lasts between the company and the promoter until the company is formed.
(2) Not to be responsible for after formation functions. – The promoter completes and undertakes all the work related to the construction of the company but individual to the mountain works from the creation of the promoter company Form and is not the answer for the post-construction work.
(3) Not to be personally responsible (No to be responsible as Individuals) If the promoter has acted in the interest of the company with honesty and care, he is not personally liable for losses to the company.
(4) No Existence of Designation after Incorporation – After the amalgamation of the company, the promoter post is terminated because the management arrangements of the company are now operative.
Pre-amalgamation contract equality
(Contracts of Pre-incoroporation)
The pre-amalgamation agreement refers to the agreement that is made between the promoters and other persons prior to amalgamation for the benefit of the company. The company has no relation with such contracts. The promoter is personally responsible for these. The following facts are revealed by this type of contract.
1. The company is not bound by prior agreements of amalgamation.
2. The company cannot ratify such agreements after amalgamation.
3. The company has no right against the third party based on such agreements.
4. If the contract is compatible with the terms of amalgamation, then specific clearances can be obtained by the company or against the company. If the company accepted such contract. And it has been reported to the other party.
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