Module V Companies Act 1956 Introduction Meaning and definition of Company Features/Characteristics of Company Types of Company

COMPANY A company in general terms means a group of persons associated together for the attainment of a common end, social or economic. Lindley’s Definition- A company is an association of many persons who contribute money to a common stock, and employ it in some common trade or business, and who share the profit or loss arising there from. As per Companies Act 1956- No specific definition is given for company. It only includes registered company which is incorporated under this Act mostly for business but may also be formed for promoting art, charity, research, religion, commerce or any other useful purpose.

Main Features/Characteristics of a Company- Voluntary Association Separate Legal entity Limited Liability Perpetual Succession Common Seal Transferability of Shares Separate Property Capacity to sue Artificial Personality

Corporate Veil and Lifting of Corporate Veil Corporate personality has been described as the ‘most pervading of the fundamental principles of company law”. It constitutes the bedrock principle upon which company is regarded as an entity distinct from the shareholders constituting it. When a company is incorporated it is treated as a separate legal entity distinct from its promoters, directors, members, and employees; and hence the concept of the corporate veil, separating those parties from the corporate body, has arisen. The issue of “lifting the corporate veil” has been considered by courts and commentators for many years and there are instances in which the courts have negated from the strict application of this doctrine. This doctrine has been established for business efficacy, necessity and as a matter of convenience. In the doctrine of ‘Lifting the Corporate Veil’, the law goes behind the mask or veil of incorporation in order to determine the real person behind the mask for the purpose of holding them liable. But for clarity as to ‘Lifting of the Corporate Veil’, an understanding of the corporate personality of a company is required, along with study of the provisions of Indian law that pave the way for courts to pierce the corporate veil. Various grounds for piercing of the corporate veil and elements of lifting of corporate veil analyzed through the lens of leading case laws and judgements form the crux of this project report.

COMPANY AS SEPARATE LEGAL ENTITY The company as a separate entity was firmly established in the landmark decision in Salomon v. Salomon & Co. Ltd. Salomon, a sole trader, sold his manufacturing business to Salomon & Co. Ltd. (a company he incorporated) in consideration for all but six shares in the company, and received debentures worth 10 thousand pounds. The other subscribers to the memorandum were his wife and five children who each took up one share. The business subsequently collapsed, and Salomon made a claim, on the basis of the debentures held, as a secured creditor. The liquidator argued that Salomon could not rank ahead of other creditors because, in fact, the company and Mr. Salomon were one and the same–or alternatively, that the company carried on business on Salomon’s behalf. On appeal, the House of Lords held that Salomon & Co. Ltd. was not a sham; that the debts of the corporation were not the debts of Mr. Salomon because they were two separate legal entities; and that once the artificial person has been created, “it must be treated like any other independent person with its rights and liabilities appropriate to itself.”

Kinds of Companies On the basis of incorporation Statutory Companies- which are created by special Act of Legislature as RBI, LIC, UTI etc Registered Companies- which are formed and registered under Companies Act, 1956 or any earlier acts. Charted Companies- which were formed under Common law of UK. as East India Co. (Now obsolete) On the basis of liability Companies with Limited Liability- By Shares OR By Guarantee Companies with unlimited Liability [Sec-12(2)] On the basis of number of members Private Company and Public Company On the basis of control Holding Co. and Subsidiary Co. On the basis of ownership Government Co. Foreign Co. One man Co.

Formation of a Company Promoter- A person who do all the necessary preliminary work incidental to the formation of a company. They are the first persons who control company affairs. The promoters conceive the idea of forming the company with reference to a given object and then set it going. They provide the company with share and loan capital and acquire the business or property which it is to manage and finally hand over the control to its directors. Documents to be filed with the Registrar Memorandum of Association duly signed, Article of Association, Any agreement made prior to incorporation List of Directors Declaration stating that all requirements of Companies Act related to registration of a company have been compiled with. ◘ Certificate of Incorporation

Memorandum of Association MoA is the fundamental document of a proposed Company It lay down the areas of operation of a company, regulates external affairs in relation to outsiders, shows the object and scope of a Company. As per sec- 15 MoA of a company shall be printed, divided into paragraphs, numbered consecutively and signed by the subscribers. Contents of Memorandum includes the following clauses Name clause Registered office clause Object clause 4) Capital clause Liability clause Association clause ● Alteration of Memorandum

Article of Association AoA are the rules, regulations and bye-laws for the internal management of the affairs of a company. They are framed with the object of carrying out the aims and objects as set out in MoA. It contains provisions relating to the following- Share capital, rights of shareholders, share certificate Lien, call, transfer and transmission of shares Alteration of capital, conversion of shares into stock General meetings and proceedings Voting rights of members Directors, managers, secretary Accounts, audits and borrowing powers Capitalisation of profits Winding up

SHARE CAPITAL Means the share of the owners in the company. Types of share capital: Authorised share capital Issued share capital Subscribed share capital called-up share capital Paid-up share capital Authorised share capital It is the max. amount upto which a company ca issue the shares. b) Issued share capital it is a part of authorised share capitalthat is issued by the company for subscription. c) Subscribed share capital it is a part of issued share capital that is subscribed. d) called-up share capital it is the amount of nominal value os shares that has been called up for payment. e) paid-up share capital it is a part of called up share capital that has been paid. 10

Annual General Meeting Extra Ordinary General Meeting Types of Meetings Two types of meeting: Shareholders meeting Statutory meeting Annual General Meeting Extra Ordinary General Meeting 2. Directors Meeting

Directors A Director may be defined as a person having control over the direction, conduct, management of the affairs of the company. Number of Directors: Every public company shall have at least 3 directors and every other company at least 2 directors. However a public company having – Paid-up capital of Rs. 5 crore or more one thousand or more small shareholders, Shall have atleast one director elected by such small shareholders.

Powers of Directors 1.General powers of the Board 2. Powers to be exercised in the board meetings. 3.Powers to be exercised with the approval of company in general meeting. 4.Power to make political contributions

Qualification Of Directors The Companies Act has not mentioned any specific qualification for the directorship, in terms of Academic, Technical and share holding Qualification. But director must have certain Qualification: He must be an individual, having the capacity to contract. He must be a shareholder of the company. He must not act as a director for more then 15 public companies at a time. He must hold a minimum qualifying amount of share. Nominal value of share shell not exceed Rs. 5000. and must hold at least one share, where the nominal value exceeds Rs. 5000.

Disqualification Of Director If he is a person of Unsound Mind. If he is an undercharged insolvent. If he is declared fraudulent by a court. If he holds more than 15 companies of public companies. If he absents himself from three consecutives Board meetings. If he fails to acquire qualification share within 2 months from the date of appointment. If he accepts loan from the company without the approval of Central Bank.

DISQUALIFICATION UNDER SUB CLAUSE (A) OF SECTION 274 (1) (g) a person shall not be capable of being appointed as a director of any company, if he is a director of a public company and such public company has not filed the annual accounts and annual returns for any continuous three financial years commencing on and after the first day of April, 1999. 

DISQUALIFICATION UNDER SUB CLAUSE (B) OF SECTION 274 (1) (g) a person shall disqualified from being appointed as a director of a company, where any public company of which also he is a director:  has failed to repay the deposits on due date; or has failed to pay the interest on deposits on due date; or has failed to redeem its debentures on due date; or has failed to pay dividend, and