ALTERATION OF MEMORANDUM

Alteration of Conditions
Change of name. A company may change its name subject to the provisions of sub-section (2)
and (3) of Section 4 by a special resolution and with the approval of the Central Government
signified in Writing. But a change of name which merely involves the deletion or addition of the
word ‘Private’ on the conversion of a public company into private company or vice versa does
not require the approval of the Central Government.
Rectification of name of company
A company on its first registration or on its registration by a new name, is registered by a name
which
a) In the opinion of the Central Government, is identical with or too nearly resembles the
name by which a company in existence had been previously registered. It may direct the
company to change its name and the company shall change its name or new name, as the
case may be, within a period of three months from the issue of such direction, after
adopting an ordinary resolution for the purpose;
b) On an application by a registered proprietor of a trade that the name is identical with or
too nearly resembles to a registered trade mark of such proprietor under the Trade Marks
Act, 1999, made to the Central Government within three years of incorporation or
registration or change of name of the company, whether under this
In the opinion of the Central Government, is identical with or too nearly
resembles to an existing tra9de mark, it may direct the company to change its name and
the company shall change its name or new name, as the case may be, within a period of
six months from the issue of such direction, after adopting an ordinary resolution for the
purpose.
Where a company changes its name or obtains a new name under sub-section (1),
it shall within a period of fifteen days from the date of such change, give notice of the
change to the Registrar along with the order of the Central Government.
If a company makes default in complying with any direction given under sub-
section (1), the company shall be punishable with fine of one thousand rupees for, every
day.
Fresh Certificate of Incorporation.
Where a company changes its name, the Registrar shall enter the new name on the Register in the
place of the former name.
Change of registered office
a. Change of registered office from the jurisdiction of one ROC to the jurisdiction of
another ROC within a State
Where there is more than one ROC within a State
b. Change of registered office from one State to another
A company may, by special resolution, change the place of its registered office from one
State to another for certain purposes.
Procedure of alteration
(1) Special resolution. A special resolution shall be passed at a general meeting so as to
change the place of registered office from one state to another.
Approval by the Central Government
The alteration shall not take effect until it is approved by the Central Government.
Consent of affected parties
The alteration has the consent of the creditors, debenture-holders and other persons concerned
with the company.
Certified copy of the order of the Central Government to be filed with the Registrar
A company shall file with the Registrar – a certified copy of the order of the Central Government
confirming the change within such time and in such manner as may be prescribed. The Registrar
shall register the same and certify the registration within thirty days from the date of filing of
such documents.
Effect of failure of register
If the documents to be filed with the Registrar under Sec.13 are not filed within the prescribed
period, such alteration and order of the Central Government and all proceedings and all
proceedings connected therewith shall become void and inoperative.
Alteration of object (Sec. 13(8)).
The objects clause is the most important clause in the Memorandum of Association. The legal
personality of a company.
Substantive limit
The object of a company may be altered by special resolution so as to enable the company
(A) To carry on its business more economically or more efficiently. The alteration must
however leave the business of the company substantially what it was before the
alteration. This clause contemplates only such changes in the mode of conducting
business as will enable it to be carried on more economically or more efficiently.
(B) To attain its main purpose by new or improved means. The emphasis here is on
attaining the company’s main purpose. The word ‘purpose’ is more restricted than
‘object’, and consequently the alteration must be one to carry out the main purpose of the
company rather than one of the object of the objects of the company, although that object
may be described in the Memorandum as a main object.
(C) To enlarge or change the local area of its operations. An alteration of this nature may
necessitate an alteration in the name of the company.
(D) To carry on some business which may conveniently or advantageously be combined
with the objects specified in the Memorandum.
A company may be allowed to carry on some business which is a departure from the
business already carried on provided such business is one which can conveniently or
advantageously be combined with the existing business of the company and is not
destructive of or inconsistent with the existing business.
In the following cases alteration of the objects clause was permitted:
(E) To restrict or abandon any of the objects 9specified in the Memorandum:
(F) To sell or dispose of the whole, or any part, of the undertaking, or of any of the
undertakings, of the company; or
(G) To amalgamate with any other company or body of persons.
Procedure of alteration
1. Special resolution. A special resolution shall be passed at a general meeting so as to alter
the objects of the company.
2. Copy of special resolution to be filed. The company shall file with the Registrar the
special resolution within 1 month from the date of the resolution with a printed copy of
the Memorandum as altered.
 3. Certification of registration. The Registrar shall register the special resolution and
certify the registration under his hand within 1 month from the date of the filing of the
special resolution.
4. Change in liability clause. A company limited by shares or guarantee cannot change its
Memorandum so as to impose any additional liability on the members or to compel them
to buy additional shares of the company unless all the members agree in writing.
5. Change in capital clause. For change in the capital clause which involves increase,
reduction or reorganization of capital it can be done only by the special resolution and the
order from the central government.

DOCTRINE OF ULTRA VIRUS

A company has the power to do all such things as are:-
1. Authorised to done by the companies Act, 2013;
2. Essential to the attainment of its object specified in the Memoramdum;
3. Reasonably and fairly incidental to its objects
Everything else is ultra vires the company. Ultra means ‘beyond’ and ‘vires’ means
‘powers’. The term ultra vires for a company means that the doing of the act is beyond
the legal powers and authority of the company. The purpose of these restrictions it to
protect.
 Investors in the company so that they may know the objects in which their money
is to be employed; and
 Creditors by ensuring that the company’s fund are not wasted in unauthorised
activities
Ultra vires act is void. If an act is virus the company, it does not create any legal relationship.
Such an act is absolutely void and even the whole body of shareholders cannot ratify if and make
it binding on the company. It is not necessary that an act to be considered ultra vires must be
illegal; it may or may not be.
Ultra vires the directors. If an act or transaction is ultra vires the directors (i.e., beyond their
powers, but within the powers of the company), the shareholders can ratify it by a resolution in a
general meeting or even by acquiescence provided they have knowledge of the facts relating to
the transaction to be ratified. If an act is within the powers of the company, any irregularities
may be cured by the consent of the shareholders.
Ultra vires the Articles. if an act or transaction is ultra vires the Articles, the company can fully
it by altering the Articles by a special resolution. Again if the act is done irregularly, it can be
validated by the consent of the shareholders provided it is within the powers of the company.

HIGHLIGHTS OF MCA – 21 SCHEME FROM 15-9-2006

Salient features of the scheme are discussed in following paragraphs:
(a) Existing from meant for physical filing have been converted into e-forms
(b) Some old forms have been eliminated and combined with new forms
(c) Filing of forms and applications will be through interest.
(d) Form can be filed online. Alternatively, these can be downloaded, filled offline and then
filed.
(e) Pre-scrutiny is done in the portal before the form is accepted for submission.
(f) E-form should be digitally signed by Managing Director, Director, Manager or Secretary.
They will have to obtain DSC, that is, Digital Signature Certificate.
(g) Documents to be attached must be in ‘Portable Document Format’, that is PDF format.
(h) Paper documents which are to be submitted will have to be scanned and attached to the e-
forms.
(i) In cases where payment of stamp duty is required, original document bearing stamp duty
will have to be filed in office of ROC, after e-filing is done.
(j) Payment of fees can be through internet through credit care/internet banking.
(k) Many forms require certification by FCA/FCMA/FCS in practice. In some cases,
Secretary in full time employment of company can certify the form.
(l) In a company has sufficient equipment and facilities, the documents can be filed by
company from its office itself. This is called ‘Virtual Office’
(m)Those who do not have adequate facilities can file documents through Facilitation
Centres established in various cities which are presently manned by TCS. Otherwise, help
of facilitation centres or CFS (Certified Filing Centres) can be obtained.
(n) Certified Filing Centres will facilitate e-filing of documents.
(o) Every director will have to obtain DIN, that is, Director’s Identification Number.
(p) Physical filing of documents is discontinued w.e.f. 15-9-2006 and e-filing is compulsory.
(q) Office of ROC, Regional Director and Delhi HQ will process the documents and
applications submitted electronically by companies.
(r) Issuance of certificated and approvals will continue to remain on paper. This will be
dispatched by post or courier to applicant.