Companies capable of being registered:
The company is a term which includes limited liability partnership, partnership firm, society, cooperative society or any other business entity formed under any other law for the time being in force which may apply for the registration under this part.
As the exceptions and subject to the provisions contained in this section, any company formed, whether before or after the commencement of this act in pursuance of any act of parliament which is other than this act or any other law for the time being in force or being otherwise duly constituted accordance with the law and it consists of seven or more members, can register at any time as per this act as an unlimited company or as a company limited by shares or a company limited by guarantee in a manner which may be prescribed and the registration may be invalid by reason only if it has taken place with a view to the company’s being wound up.
Provided that-
- A company registered under the Indian Companies Act, 1882, or under the Indian Companies Act, 1913 or the companies act, 1956 shall not register in pursuance of this section;
- A company which has the liability of its members limited by any act of parliament other than this act or any other law for the time being in force, would not register in pursuance of this section as an unlimited company or a company limited by guarantee.
- A company may be registered in pursuance of this section as a company limited by shares only if it has a permanent paid up or a nominal share capital of fixed amount divided into shares, with a fixed amount or transferable as a stock or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holder of those shares or that stock and no other persons;
- A company shall not register in pursuance of this section without the assent of a majority of such of its members as are present in person, or where proxies are allowed, by proxy, at a general meeting summoned for the purpose;
- Where a company not having the liability of its members limited by any act of parliament or any other law for the time being in force is about to register as a limited company, the majority required to assent as aforesaid shall consist of not less than three-fourths of the members present in person, or where proxies are allowed, by proxy, at the meeting;
- If a company needs to register as a company limited by guarantee, the assent of that has to be registered and which shall be accompanied by the resolution declares as that the members undertake to contribute to the assets of the company in the event of it’s being wound up while he is a member or within a period of one year after he ceases to be a member, for the payment of liabilities and debts of the company or of such liabilities and debts as may have been contracted before he ceases to be a member and of charges, expenses, costs of winding up and for the adjustment of the rights of the contributories among themselves, such amount as may be required, should not exceed a specified amount.
When computes any majority requires for the purposes of sub-section (1), if a poll is demanded, regards with the number of votes to which each member been entitled according to with the regulation of the company.
Certificate of registration of existing companies:
On compliance with the requirements with respect to registration, and on payment of such fees, if any, as are payable under section 403, the registrar shall certify under his hand that the company applying for registration is incorporated as a company under this act, and in the case of a limited company that it is limited and thereupon the company shall be so incorporated.
Vesting of property on registration:
All immovable, movable properties which are vested or belonging in a company at the date of its registration in pursuance of this part, on such registration pass to or vest in a company as incorporated under the act for all the interest and estate of the company therein.
Saving of existing liabilities:
The registration of a company in pursuance of this part shall not affect its rights or liabilities in respect of any debt or obligations incurred, or any contract entered into, by, to, with, or on behalf of, the company before registration.
Continuation of pending legal proceedings:
The suits and the legal proceedings which are taken by or against a company or any other public officer or a member thereof, pending at the time of registration of a company in pursuance of this part, may continue in the same manner as if the registration had not taken place.
Provided that execution shall not issue against the property or persons of any individual member of the company on any decree or order obtained in any such suit or proceeding; but in the event of the property of the company being insufficient to satisfy the decree or order, an order may be obtained for winding up the company.
Effect of registration under this part:
When a company is registered in pursuance of this part, sub-section (2) to (7) shall apply.
All the provisions which contains in any act of parliament or any other law for the time being in force or other instruments constitutes or regulates the company includes if the company registered as a company limited by guarantee, the resolution of this declares the amount of the guarantee, that shall be deemed to be regulations and conditions of the company, in a same manner and with the same incidents as if so much thereof as would, in case the company have been formed under this act, required to be inserted in the memorandum, should be contained in the registered memorandum and the residue thereof contained in the registered articles.
All the provisions of this act shall apply to the company and the members, contributories, and creditor thereof, in the same manner in all respects as if it had been formed under this act, subject as follows:
- The provisions of this act relating to the numbering of shares shall not apply to any company whose shares are not numbered;
- In the event of the company being wound up, every person shall be a contributory, in respect of the debts and liabilities of the company contracted before registration, who is liable to pay or contribute to the payment of any debt or liability of the company contracted before registration, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members among themselves in respect of any such debt or liability, or to pay or contribute to the payment of the costs, charges and expenses of winding up the company, so far as relates to such debts or liabilities as aforesaid;
- In the event of the company being wound up, every contributory shall be liable to contribute to the assets of the company, in the course of the winding up, all sums due from him in respect of any such liability as aforesaid; and in the event of the death of insolvency of any contributory, the provisions of this act with respect to the legal representatives of deceased contributories, as the case may be, shall apply.
The provisions of this act with respect to
- The registration of an unlimited company as a limited company;
- The powers of an unlimited company on registration as a limited company, to increase the nominal amount of its share capital and to provide that a portion of its share capital shall not be capable of being called up except in the event of winding up;
- The power of a limited company to determine that a portion of its share capital shall not be capable of being called up except in the event of winding up,
shall apply, notwithstanding anything in this act of parliament or any other law for the time being in force, or other instrument constituting or regulating the company.
Nothing in this section shall authorize the company to alter any such provisions contained in any instrument constituting or regulating the company as would if the company had originally been formed under this act, have been required to be contained in the memorandum and are not authorized to be altered by this act.
None of the provisions of this act shall derogate from any power of altering its constitution or regulations which may be vested in the company, by virtue of any act of parliament or any other law for the time being in force, or other instrument constituting or regulating the company.
In this section, the expression “instrument” includes the deed of settlement, deed of partnership or limited liability partnership.
Power of court to stay or restrain proceedings:
The provisions of this act with respect to restraining the suits, staying and other legal proceedings against a company at any time after the presentation of a petition in order to wind up and before making the wind up order, shall, in case the company registered in pursuance of this part, the application to restrain, or stay by a creditor, extend to suits and the other legal proceedings against the contributory of a company.
Suits stayed on winding up order:
The order that has been made for winding up or a provisional liquidator has been appointed for a company which is registered in pursuance of this part, there will not be any suit or any other legal proceedings with or commenced against a company or any other contributory of the company with respect to any debt of the company, except by leave the tribunal and except on such terms as the tribunal may impose.
Obligations of companies registering under this part:
Every company which is seeking registration under this part, shall
- Ensure that secured creditors of the company, prior to its registration under this part, have either consented to or have given their no objection to company’s registration under this part;
- Publish in a newspaper, advertisement one in English and one in vernacular language in such form as may be prescribed giving notice of registration under this part, seeking objections and address them suitably;
- Have to file the affidavit which should be duly notarized from all the partners or members who are in the event of registration under this part, necessary papers or documents has to be submitted to the registering or any other authority with which the company was registered earlier, for its dissolution as an LLP. Partnership firm, society, cooperative society or any other business entity in the case may be.
- Comply with such other conditions as may be prescribed.