Section 4 of the Companies Act, 2013- Memorandum

Section 4 of the Companies Act, 2013:- Memorandum

²[(1) The memorandum of a company shall state—

(a) the name of the company with the last word “Limited” ¹in the case of a public limited company, or the last words “Private Limited” in the case of a private limited company]:

⁴[Provided that nothing in this clause shall apply to a company registered under section 8;]

(b) the State in which the registered office of the company is to be situated;

^3&5[(c) the objects for which the company is proposed to be incorporated and any matter considered necessary in furtherance thereof;]

(d) the liability of members of the company, whether limited or unlimited, and also state,—

(i) in the case of a company limited by shares, that liability of its members is limited to the amount unpaid, if any, on the shares held by them; and

(ii) in the case of a company limited by guarantee, the amount up to which each member undertakes to contribute—

(A) 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

(B) to the costs, charges and expenses of winding-up and for adjustment of the rights of the contributories among themselves;

(e) in the case of a company having a share capital,—

(i) 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

(ii) the number of shares each subscriber to the memorandum intends to take, indicated opposite his name;

(f) in the case of One Person Company, the name of the person who in the event of death of the subscriber shall become the member of the company.

(2) 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 its use by the company—

(i) will constitute an offence under any law for the time being in force; or

(ii) is undesirable in the opinion of the Central Government.

(3) Without prejudice to the provisions of sub-section (2), a company shall not be registered with a name which contains—

(a) 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

(b) 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.

(4) 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—

(a) the name of the proposed company; or

(b) the name to which the company proposes to change its name.

*⁶[(5) (i) 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.]

(ii) Where after reservation of name under clause (i), it is found that name was applied by furnishing wrong or incorrect information, then,—

(a) if the company has not been incorporated, the reserved name shall be cancelled and the person making application under sub-section (4) shall be liable to a penalty which may extend to one lakh rupees;

(b) if the company has been incorporated, the Registrar may, after giving the company an opportunity of being heard—

(i) either direct the company to change its name within a period of three months, after passing an ordinary resolution;

(ii) take action for striking off the name of the company from the register of companies; or

(iii) make a petition for winding up of the company.

(6) 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.

(7) Any provision in the memorandum or articles, 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.

Amendment

^6. Substituted by the Companies (Amendment) Act 2017 – Yet to be notified by Central Government

In section 4 in sub-section (5), for clause (i) for :-

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 sixty days from the date of the application.

the following Clause shall be substituted, namely :-

“(i) 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.”

Exceptions/ Modifications/ Adaptations.

^1. In case of Government company, in Section 4, in sub-section (1), in clause (a), the words “in the case of a public limited company, or the last words “Private Limited” in the case of a private limited company” shall be omitted. – Notification dated 5th june, 2015.

^2. In case of Specified IFSC Public Company – Clause (a) of sub – section (1) of section 4 after the proviso, the following proviso shall be inserted, namely:-

“Provided further that a Specified IFSC Public Company shall have the suffix “International Financial Service Company” or “IFSC” as part of its name.” – Notification Date 4th January, 2017 .

^3. In case of Specified IFSC Public Company – Clause (c) of subsection (1) of section 4 the following proviso shall be inserted, namely:-

“Provided that a Specified IFSC Public Company shall state its objects to do financial services activities, as permitted under the Special Economic Zones Act, 2005 (28 of 2005) read with the Special Economic Zones Rules, 2006 and any matter considered necessary in furtherance thereof, in accordance with license to operate, from International Financial Services Centre located in an approved multi services Special Economic Zone, granted by the Reserve Bank of India or the Securities and Exchange Board of India or the Insurance Regulatory and Development Authority of India.” – Notification Date 4th January, 2017.

^4. In case of Specified IFSC Private Company – In clause (a) of sub-section (1) of Section 4, after the proviso, the following proviso shall be inserted, namely:-

“Provided further that a Specified IFSC private company shall have the suffix “International Financial Service Company” or “IFSC” as part of its name.”. Notification Dated 4th January 2017.

^5. In case of Specified IFSC Private Company – In clause (c) of sub-section (1) of section 4, the following proviso shall be inserted, namely:-

“Provided that a Specified IFSC private company shall state its objects to do financial services activities, as permitted under the Special Economic Zones Act, 2005 read with the Special Economic Zones Rules, 2006 and any matter considered necessary in furtherance thereof, in accordance with license to operate, from International Financial Services Centre located in an approved multi services Special Economic Zone, granted by the Reserve Bank of India or the Securities and Exchange Board of India or the Insurance Regulatory and Development Authority of India.”. – Notification Dated 4th January 2017.

Notes:

* Clause (1) of Sub-section (5) has been notified on 23rd January 2018 and is effective from 26th January 2018.