Page 211 - DMGT407Corporate and Business Laws

Corporate and Business Laws

Notes Section 33 also requires a declaration to be filed with the registrar along with the memorandum
and the articles. This is known as “Statutory Declaration of Compliance.” It can be made by an
advocate of supreme court or high court, an attorney or pleader entitled to appear before a high
court, or a company secretary or a chartered accountant in whole-time practice in India, who is
engaged in the formation of the company, or by a person named in the articles as a director,
manager or secretary of the company. The declaration must certify that all requirements of the
Act and Rules made thereunder in respect of registration have been complied with.
Section 266 requires that if the first directors are appointed by the articles then the following
must be complied with before the registration of articles with the registrar: (i) written consent
of those directors to act, signed by themselves, or by an agent duly authorised in writing; and (ii)
an undertaking in writing signed by each such director to take from the company and pay for his
qualification shares (if any), unless he has taken his qualification shares and paid or agreed to
pay for them, or signed the memorandum for a number of shares not less than the qualification
shares.
Section 266 is applicable only to a public company having a share capital.
The following two documents, though not required to be filed for the purpose of registration,
are usually delivered along with the aforesaid documents. (i) The address of the registered office
of the company (s.146). (ii) Particulars regarding directors, manager and secretary, if any (s.303).

These two documents are required to be submitted within thirty days of registration of the
company.

8.2.1 Availability of Name

Section 20 states that a company cannot be registered by a name, which in the opinion of the
Central Government is undesirable. Therefore, it is advisable that promoters find out the
availability of the proposed name of the company from the registrar. For the purpose, three
names in order of priority should be filed with the registrar.

8.2.2 Certificate of Incorporation/Consequences of Incorporation

When the aforesaid documents have been filed with the registrar and the necessary fees paid, the
registrar will, if he is satisfied, enter the name of the company on the register maintained by him
(s.33) and then will issue a certificate of incorporation under his signature as a token of registration
of the company on the date noted on it (s.34). This certificate serves the same purpose in the case
of a company which a birth certificate does in the case of a natural person.
On registration, the company comes into existence as a legal person distinct from its members
who constitute it, from the earliest moment of the day of incorporation stated in the certificate
of incorporation, with rights and liabilities similar to a natural person, competent to enter into
contracts (s.34).
The certificate of incorporation is conclusive evidence that all the requirements of the Companies
Act in respect of registration and of matters precedent and incidental thereto have been complied
with. Accordingly, if a memorandum is found to be materially altered after signature but before
registration (Peel case, (1867) 2 Ch App 674), or is signed by only one person for all the seven
subscribers or the signatories be all infants (Moosa Goolam Ariff vs. Ebrahim Gulam Ariff ILR
(1913) 40 Cal 1 PC), the certificate would be nevertheless conclusive and would not affect the
status and existence of the company as a legal person although such irregularities might give
rise to claim between the subscribers.
This provision prevents the reopening of matters prior and contemporaneous to the registration
and essential to it and it places the existence of the company as a legal person beyond doubt.

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