226099 (1).ppt

What is a company?
 A Company is a voluntary
association of persons formed for the
purpose of doing business, having a
distinct name and limited liability.
 They can be incorporated under the
Companies Act (it may be any type
of company)
 Corporations enacted under special
enactments ( Even those which are
incorporated outside India)
 Corporate sole
 Any other body corporate notified by
the central government

Features of a company
 A company is considered as a
separate legal entity from its
members, which can conduct
business with all powers to contract.
 Independent corporate entity
(Saloman V. Saloman) It is
independent of its members and
shareholders

Other features
 Limited Liability ( either by share or
guarantee)
 It can own property, separate from its
members. The property is vested
with the company, as it is a body
corporate.
 The income of the members are
different from the income of the
company ( Income received by the
members as dividends cannot be
same as that of the company)
cont….

Features continued..
 Perpetual succession: Death of the
members is not the death of the
company until it is wound up
 As it is a legal entity or a juristic
person or artificial person it can sue
and be sued
 The company enjoys rights and
liabilities which are not as that of the
members of the company

Lifting of Corporate Veil
 As the company is a separate legal
entity , is has been provided with a
veil, compared to that of individuals
who are managing the company.
 But if the court feels that such veil
has to been used for any wrongful
purpose, the court lifts the corporate
veil and makes the individual liable
for such acts which they should not
have done or doing in the name of
the company

Circumstances to lift the
corporate veil…
The corporate veil can be lifted either
under the
 Statutory provisions or
 Judicial interpretations
The statutory provisions are
Provided under the Companies
Act, 1956
The other circumstances are decided
through Judicial interpretations, which
are based on facts of each case as per
the decisions of the court

Statutory circumstances for
lifting the corporate veil
 Reduction in membership- Less than
seven in public company and less
than two if it is a private company
 Failure to refund application money-
After the issue of shares to the
pubic, the company has to pay back
the initial payment to the
unsuccessful applicants (SEBI
Guidelines- 130 Days), if they fail to
do so, the corporate veil can be
lifted.
 Mis-description of companies name-
While signing a contract if the
company’s name is not properly
described, then the corporate veil
can be lifted.

continued
 Misrepresentation in the prospectus- (Derry
Vs Peek) In case of misrepresentation, the
promoters, directors and every other
person responsible in this matter can be
held liable.
 Fraudulent Conduct- In case the company
is carried on with an intent to defraud the
creditors, then the court may lift the
corporate veil.
 Holding and subsidiary companies- A
subsidiary has a distinct legal entity from
the holding company other than in a few
circumstances, so if otherwise shown, the
court may under the Act , lift the corporate
veil of the subsidiary company.

Circumstances to lift the corporate
veil through judicial interpretations
 When the court feels that there are
no statutory provisions which can
pierce the corporate veil, and the
identity of the company is not the
one which has to exist, and the
court has to interfere in order to
avoid the activities that are done in
the name of the company by persons
managing them, it has been
empowered to do so……
The circumstances are…..

Judicial interpretations by the
court are as follows:
 Protection of Revenue- When ever a
company uses its name for the purpose of
tax evasion or to circumvent tax obligations
 Prevention of fraud or Improper conduct-
The incorporation has been used for
fraudulent purpose, like defrauding the
creditors, defeating the purpose of law etc..
 Determination of the character of the
company- Enemy company or all the
members being the citizens of the enemy
country. (Daimler Co. Ltd V. Continental
Tyre & Rubber Co. Ltd)

Other circumstances
 Where a company is used to avoid
welfare legislation- If a company is
formed in order to avoid the benefits
to the workers like bonus, or other
statutory benefits..
 For determining the technical
competence of the company- To look
into the competency of the company
or the shareholders or promoters
(New Horizon’s Ltd and Another V. Union of India
(1994)

Types of Companies
 Limited Company ( Limited by
share or by guarantee)
 Unlimited company
 Government Company
 Foreign Company
 Private Company
 Public Company

Limited Company
 Limited by Shares- In such companies, the
liability is only the amount which remains
unpaid on the shares.
 Limited by Guarantee not having share
capital-In this type of companies the
memorandum of Association limits the
members’ liability. It will be based on the
undertaking that has been given in MOA for
their contribution in case of a winding up.
 Limited by guarantee having share capital-
In such cases , the liability would be based
on the MOA towards the guaranteed
amount and the remaining would be from
the unpaid sums of the shares held by the
person concerned.

Unlimited Company
 There is no limit on the liability of the
members. The liability in such cases would
extend to the whole amount of the
company’s debts and liabilities.
 Here the members cannot be directly sued
by the creditors.
 When the company is wound up, the
official liquidator will call upon the members
to discharge the liability.
 The details of the number of members with
which the company is registered and the
amount of share capital has to be stated in
the Articles of Association (AOA).

Government Company
 When 51% of the paid up share
capital is held by the government.
 The share can be held by the central
government or state government.
Partly by central and partly by two or
more governments.
 As the legal status of the company
does not change by being a
government company, there are no
special privileges given to them.

Foreign Company
 A company incorporated
outside India, but having a place
of business in India.
 If it does not have a place of
business in India but only has
agents in India it cannot be
considered to be foreign
company.

Private Company
 A company which has a minimum of
two persons. They have to subscribe
to the MOA and AOA
 It should be have a minimum paid up
capital of 1 lakh or more as prescribed
by the article.
 The maximum number of members to
be fifty ( it does not include members
who are employed in the company,
persons who were formerly employed)
 The rights to transfer the shares are
restricted in the Private companies
continued….

 Prohibits any invitation to the public
to subscribe and therefore it cannot
issue a prospectus inviting the public
to subscribe for any shares in, or
debentures of the company
 It prohibits acceptance of deposits
from persons other than its
members, directors or their relatives.
 If two or more are holding one or
more shares in a company jointly,
they shall for the purpose of this
definition, be treated as a single
member.
 As there is no public accountability
like a public company, there is no
rigorous surveillance.

Exemption and Privileges of a
Private company
 It can have a minimum of two
members.
 It can commence business
immediately after obtaining
certificate of incorporation.
 It need not issue prospectus or
statement in lieu of prospectus.
 It can have a minimum of 2 directors.
 It need not hold statutory meeting or
file statutory report with the ROC.

Public Company
 A Public company means a
company-
> Which is not a private company
> Which has a minimum paid-up
capital of Rs 5 lakh or such higher
paid-up capital, as may be
prescribed
> Which is a private company and is
a not a subsidiary of a company,
which is private company.
>It includes- any company which is
a public company with a paid up
capital of less than 5 lakh, then it has
to enhance its paid up capital as per
the statutory requirement

Conversion of Company
 The Act provides for conversion of
public company into a private
company and vice versa
 A private company is converted into
a public company either by default or
by choice in compliance with the
statutory requirements.
 Once the action for conversion takes
place then, a petition can be filed
with the central government with the
necessary documents for its decision
on the matter of conversion

Registration and Incorporation
 Association of persons or partnership
or more than 20 members ( 10 in case
of banking) can register to form a
company under the Companies Act,
1956
 If they do not register they can be
considered to be illegal association.
The contract entered into by this illegal
association is void and cannot be
validated. Its illegality will not affect
its tax liability or its chargeability
 The certification of incorporation is the
conclusive evidence, that all the
requirements for the registration have
been complied with the

Incorporation of a Company
 The persons who conceive an idea of a
company decide and do the necessary
work for formation of a company are called
the promoters of the Company.
 The Promoters are the persons who decide
on the formation of the company.
 The promoters of a company stand
undoubtedly in a fiduciary position though
they are not the agent or a trustee of a
company. They are the ones “who create
and mould the company”.
 They may have to enter into pre-
incorporation contracts , which can be
validated after the incorporation of the
company for obtaining certificate of
incorporation.

Promoters
 They can be remunerated for their
services, but they have to enter into
a contract before the incorporation of
the company through a pre
incorporation of the company
 They will usually act as nominees or
as the first directors of the company
 They enter into contracts after the
incorporation and before the
commencement of business.
 But they need not compulsorily
participate in the formation of the
company.

 Sometimes , a few persons may only
act as professionals who help the
promoters on behalf of the
company.. like the solicitor, chartered
accountant etc.. and get paid for
their services.
 The promoters in most of the cases
decide as to …What is the type of a
company to be formed?
 In India promoters generally secure
the management of the company
that is formed and have a controlling
interest in the company’s
management

Legal Position of the
Promoters
 They cannot make profit at the
expense of the company, which they
have promoted without the
knowledge and consent of the
company. In case they do so , they
may be compelled to account for it.
 They cannot sell their property to the
company at a profit unless all the
material facts are disclosed at the
independent board of directors or the
shareholders of the company.
 If they do so, the company may
repudiate the contract of sale or
confirm the sale after recovering the
profit made by the promoter.

Promoters have the following
liabilities under the Companies
Act, 1956
 They can be liable for non compliance of
the provisions of the Act
 Severe penalty may be imposed
 The court may suspend the promoter from
taking part in the management of the
company
 Liable for any untrue statement in the
prospectus to the person who has
subscribed for any shares or debentures
on the faith of the prospectus
The liabilities are ….
a) to set aside the allotment of shares,
b) sued for damages,
c) sued for compensation
d) criminal proceedings

The requirements are as
follows
 Application for availability of name
 Preparation of MOA and AOA
 Selection and finalization of MOA
and AOA- Its printing, stamping and
signing
 Preparation of other necessary
documents
 Filling of the required documents for
Registration to obtain certificate of
incorporation and Certificate of
commencement of business

Memorandum of Association
 It is the charter of the company
 It contains the fundamental
conditions upon which the company
can be incorporated
 It contains the objects of the
company’s formation
 The company has to act within
objects specified in the MOA
 It defines as well as confines the
powers of the company
 Any thing done beyond the objects
specified in the MOA will be ultra
vires. Their transactions will be null
and void
 The outsider have to transact looking
into the MOA

Conditions of the MOA
 It should be printed
 Divided into paragraph and numbers
consecutively
 Signed by at least seven persons or
two in case of public and private
company respectively.
 The signature should be in the
presence of a witness, who will have
to attest the signature
 Members have to take shares and
write the number of shares taken
with full address

The MOA of the Limited
Company
 The name of the company with
‘limited’ as the last word
 The name of the state where the
registered office of the company is to
be situated
 The objects of the company stating
the ‘Main objects’ and the ‘other
objects’
 The declaration about the liability of
the members is limited ( limited by
shares or guarantee)
 The amount of the authorized share
capital, divided into shares of fixed
amounts.

The Compulsory Clauses
in MOA
 The Name Clause – it decides on the name
of the company based on the capital
involved
 The Registered Office Clause- where it has
registered its head office and other branch
office ( The registered office can be
changed with the permission of the ROC)
 The Object Clause- Main object, ancillary
object and the other objects of the
company are clearly specified ( Ashbury
Railway Carriage Co V. Riche). The
applicable doctrine here is the “ Doctrine of
Ultra Vires” beyond the powers of the
company (opposed to Intra Vires)

 The Liability Clause- What is the liability of
its members.. limited by shares or
guarantee or unlimited, there can be
alteration in the liability clause
 The Capital Clause - The amount of the
nominal capital of the company, number of
shares in which it is to be divided…
alteration of the capital clause etc
 The Association or Subscription clause-
Where the subscribers to the MOA declare
that they respectively agree to take the
number of the shares in the capital. It has
to have the following:
a) They have to sign in the presence of two
witnesses, who attest the signatures,
b) The subscriber to take at least one
share.
c) After the name the subscriber has to
write the number of shares taken

“Doctrine of Ultra Vires”
 The powers exercisable by the company
are to be confined to the objects specified
in the MOA.
 So it is better to define and include the
provisions regarding the acquiring of
business, sharing of profits, promoting
company and other financial, gifts , political
party funds etc
 If the company acts beyond the powers or
the objects of the company that is specified
in the MOA, the acts are considered to be
of ultra vires. Even if it is ratified by the all
the members, the action is considered to
be ineffective.
 Even the charitable contributions have to
be based on the object clause. ( A
Lakshmanaswami Mudaliar V. LIC of India)

The consequences of the ultra
vires transactions are as follows:
a) Injunction
b) Directors’ personal liability.
c) If a property has been purchased
and it is an ultra vires act, the
company can have a right over that
property.
d) The doctrine to be used exclusively
for the companies’ interest.
e) But the others cannot use this
doctrine as a tool to attack the
company

Articles of Association
 It is the companies bye- laws or rules
to govern the management of the
company for its internal affairs and
the conduct of its business.
 AOA defines the powers of its
officers and also establishes a
contract between the company and
the members and between the
members inter se
 It can be originally framed and
altered by the company under
previous or existing provisions of
law.

AOA
 AOA plays a subsidiary part to the MOA
 Any thing done beyond the AOA will be
considered to be irregular and may be
ratified by the shareholders.
 The content of the AOA may differ from
company to company as the Act has not
specified any specific provisions
 Flexibility is allowed to the persons who
form the company to adopt the AOA within
the requirements of the company law
 The AOA will have to be conversant with
the MOA, as they are contemporaneous
documents to be read together.
 Any ambiguity and uncertainty in one of
them may be removed by reference to the
other.

Contents of the AOA may be
as follows:
 Share capital
 Lien on shares
 Calls on shares
 Transfer and transmission of shares
 Forfeiture of the shares
 Surrender of the shares
 General meetings
 Alteration of the capital
 Directors etc..
 Dividends and reserves
 Account and audit
 Borrowing powers
 Winding up
 Adoption of the preliminary contracts etc….

Doctrine of Constructive notice
and Indoor Management
 Persons dealing with the company have to
satisfy themselves. But need not know the
internal irregularity. Royal British Bank V.
Turquand (Turquand Rule) Directors
issuing a bond.
 The doctrine of Constructive notice can be
invoked by the company to operate against
the persons dealing with the company.
 The outsider cannot embark, but only can
acquaint upon the MOA and AOA. (Official
Liquidator, Manasube &Co Pvt Lid V.
Commissioner of Police)

Exceptions to the Doctrine of
Where the outsider cannot claim
the relief on the grounds of
“Indoor management”
 Knowledge of irregularity
 No knowledge of articles
 Negligence
 Forgery
 Non- Existent authority of the
company

Raising of Capital From Public
 The companies can raise money by
offering securities for sale to the
public.
 They can invite the public to buy
shares, which is known as public
issue.
 For this purpose the company may
issue a prospectus, which may
include a notice circular,
advertisement or other documents
which are issued to invite public
deposits.

Prospectus
 It is an invitation issued to the public to
purchase or subscribe shares or
debentures of the company.
 Every prospectus must be dated. The date
of publication and the date of issue must
be specifically stated in the prospectus.
 The golden rule of the prospectus is that
every detail has to be given in strict and
scrupulous accuracy. The material facts
given in the prospectus are presumed to be
true.( New Brunswick and Canada Railway.
Land & Co. Vs. Muggerridge).

Various forms in which the
prospectus can be issued.
 Shelf Prospectus: Prospectus is normally
issued by financial institution or bank for
one or more issues of the securities or
class of securities mentioned in the
prospectus.
 There can be deemed prospectus also if it
is issued by the issue house
 ‘Information Memorandum’: It means a
process, which is undertaken prior to the
filing of prospectus.
 Even an Advertisement , that the shares
are available is considered to be
prospectus

Contents of the prospectus
 General information
 Capital structure
 Terms of present issue
 Management and projects
 Management and perception of
risk factor
It is compulsory to register the
prospectus with the Registrar

Civil Liability for Misstatements
In case of any untrue statement in
the prospectus
 The liability will be on the director of
the company , whose name was
written during the time of issue
 The persons who have authorized
their names to be theirs in the
prospectus to be named as directors
 Promoter
 Every person including the person
who is an expert and has authorized
his name to be issued with the
prospectus

Remedies for misstatements
in the prospectus
 Relying on the prospectus if any
person buys shares, the person may
 Rescind the contract ( only when
there is misrepresentation relating to
the material facts.
The rescission has to be done within
a reasonable time
 Claim damages- it can be claimed
from the directors, promoters or
other persons who has authorized
their name to be written during the
issue of the prospectus

Share Capital
 Share: Share is defined as “an interest
having a money value and made up of
diverse rights specified under the articles of
association”.
 Share capital: Share capital means the
capital raised by the company by issue of
shares.
 A share is a share in the share capital of
the company including the stock.
 Share gives a right to participate in the
profits of the company, or a share in the
assets when the company is going to be
wound up.

Other features of a share
 A share is not a negotiable instrument, but
it is a movable property.
 It is also considered to be goods under the
Sale of Goods Act, 1930.
 The company has to issue the share
certificate.
 It is subject to stamp duty.
 The ‘Call’ on Shares is a demand made for
payment of price of the shares allotted to
the members by the Board of Directors in
accordance with the Articles of Association.
 The call may be for full amount or part of it.

Share Certificate and Share
Warrant
 Share Certificate: The Share Certificate is a
document issued by the company and is prima facie
evidence to show that the person named therein is
the holder ( title) of the specified number of shares
stated therein.
 Share certificate is issued by the company to the (
share holder) allottee of shares.
 The company has to issue within 3 months from the
date of allotment. In case of default the allottee may
approach the central government
 Share Warrant: The share warrant is a bearer
document issued by the company under its common
seal. As share warrant is a negotiable instrument, it
is transferred by endorsement and by mere delivery
like any other negotiable instrument.

Kinds of shares
>Preference shares- It can be further
classified as
 Participating preferential shares.
 Cumulative preferential shares
 Non Cumulative preferential shares
>Redeemable Shares and
>Irredeemable Shares
>Equity or ordinary shares
>Shares at premium
>Shares at discount
>Bonus shares
>Right shares

Transfer and Transmission of
shares
 AOA provides for the procedure of transfer
of shares. It is a voluntary action of the
shareholder.
 It can be made even by a blank transfer –In
such cases the transferor only signs the
transfer form without making any other
entries.
 In case it is a forged transfer, the
transferor’s signature is forged on the
share transfer instrument.
 Transmission of shares is by operation of
law, e.g. by death, insolvency of the
shareholder etc.

Buy-Back of Securities
 The company may purchase its securities
back and it is popularly known as buy back
of shares
 To do so , the company has to be
authorized under the AOA.
 The company has to comply with the
provisions of the Company law to buy back
its securities.
 The listed company has to seek permission
from the SEBI (SERA 1998). Specifically
for the private company etc, the Buy Back
Securities Rules1999 will be applicable.

Dividends
 The sharing of profits in the going concerns
and the distribution of the assets after the
winding up can be called as dividends
 It will be distributed among the shares
holders
 The dividends can be declared and paid
out of:
Current profits
Reserves
Monies provided by the government and
the depreciation as provided by the
companies.
It can be paid after presenting the balance
sheet and profit and loss account in the
AGM

Dividend
 Other than the equity shareholders,
even the preferential shareholders
can get the dividends. Rather they
are the first ones to get the
dividends.
 Dividends are to be only in cash, if
otherwise specified in the AOA.
 In exceptional cases, even the
central government may permit the
payment of interest to shareholders ,
even though there is no profit.

Directors
The Legal Status of the director
The director occupies the position of a:
 As a Trustee- In relation to the company
 As Agents- When they act o n behalf of the
company
 As Managing Partner-As they are
entrusted with the responsibility of the
company
Qualification Shares
In case there is requirement as per the
AOA for the director is bound to buy
qualification shares
If acts are done by the director prior to he
or she being disqualified, the acts are
considered to be valid.

Disqualifications
As per the company law, the following
persons are disqualified from been appointed
as a director:
 Unsound mind
 An undischarged insolvent
 A person who is convicted by the court
 Who has applied for being adjudged
insolvent
 Not paid for the call on shares
 Persons who are already directors in
maximum number of companies as per the
provisions of the Act or
 Any other person who has been
disqualified by the court for any other
reason

Appointment of Directors
 The appointment can sometimes be by
based on the proportional representation
like minority shareholders.
 There can be alternate directors, additional
directors, casual directors.
 The third parties can appoint the directors
 Other than the shareholders and the first
directors ,the central government and
NCLT may also appoint directors.

Duties and Liabilities of the
Directors
Fiduciary Duties
 To act honestly and with good faith
 Not to use confidential information of the
company for their own purpose
 Duty of Care and to act reasonably while
acting for the company
Statutory Duties
 Not to contract with company, where
he/she or his relative has an interest in the
contract
 where he/she has a interest, they need to
inform the board or seek prior approval
while entering into contract, otherwise the
contract is voidable
 Duty to attend and convene meetings
 Duty not to delegate

The directors liabilities
 The liability of the directors can be either
civil or criminal.
 If provided in the MOA, the liability may be
unlimited, for a limited company, otherwise
it may be altered.
 Liability may be for breach of fiduciary
duties
 The directors are personally liable for the
following:
a) Ultra vires acts
b) malafide acts
c) negligent acts
d) liability for the acts of third parties

Criminal Liability
 Liability of the director for any untrue
statement in the prospectus
 Inviting any deposits in contravention
of the law
 Liability for false advertisement
 Failure to repay the application
money, which was excess
 Concealing the names of the
creditors
 Failure to lay the balance sheet.
 Failure to provide information to the
auditor etc

Company Meetings
 A meeting may be convened by the
director, requisitionist, or the NCLT
 Notice to be given by the secretary
after the time and place have been
fixed by the directors
 Even the shareholders can call a
meeting as an extraordinary general
meeting (EGM)
 The NCLT can call an Annual
General Meeting (AGM)

Classification of Meetings
 Shareholders meetings
a) Statutory meetings ( which
happens only once in the lifetime of
the company)
b) EGM- Convened to transact some
special or important decision to be
taken
c) Class meetings- This is the
meeting of the shareholders- which
is convened by the class of
shareholders based on the kind of
shares they hold.
continued…..

Other meetings
 AGM-it can be conducted based on
the provisions given in the Articles or
by passing a resolution in one AGM
for the subsequent AGM’s
 Board Meetings- This is conducted
for the smooth running of the
company and for collectively taking
the decisions. The meetings may be
conducted to call on shares, issue
debentures, borrow money, to make
loans, To invest the funds etc

How to conduct meeting?
 Written notice to be given
 Notice to be issued under the
authority of the company
 In case of failure to give a
notice, the persons concerned
may be punished with fine and
the proceedings of the meeting
will be rendered invalid.

Resolution
 A motion when passed is called a
resolution.
 The resolution in the General body
meetings can be an ordinary
resolution
( Simple majority) and special
resolution.
 Special resolution- ( notice of 21
days to be given) the notice has to
specify the purpose. The number of
votes to be cast in favour of the
resolution is to be three times the
number vote cast against.

Quorum and proxy
 The minimum members to be present must
be according to the provisions of the law.
 Public company ( minimum Five) and
private company (minimum of 2)
 The quorum must be those members who
are eligible to vote in respect of the agenda
of the meeting.
 If the quorum is not present within half an
hour from the appointed time, either the
meeting stands dissolved or may be
adjourned in the same day next week or
any other as may be determined by the
directors
 A person in case of being incapable to
attend a meeting and who is eligible to vote
may appoint a proxy in writing to attend the
meeting of the member and vote on his or
her behalf. The proxy can only vote and
cannot participate in the discussions.

Compromise, Reconstruction
and Arrangement
 Reconstruction includes reorganization,
arrangement and amalgamation.
 Arrangement includes all forms of
reconstructing.
 It has been broadly defined as all forms of
capital reorganizations either by
consolidation of shares or division of
shares or both
 Reorganization and arrangement are done
when there is only one company is
involved
continued….

 Reconstruction can be effectively done
through a compromise or arrangement.
 To do so the meeting or the members or
the separate class of the shareholders has
to be conducted or in case of winding up
the meeting to be called by the liquidator
 Even a banking company (sick bank) may
be reconstructed or amalgamated by the
central government on the basis of the
Reserve Bank’s application for a fixed
period of time.
 The reconstruction or amalgamation can
be done with any other banking institution.

Scheme to be approved
 Any kind of scheme to be accepted,
it has to get approval from the
members or the members may reject
the scheme.
 After the scheme is approved by
voting, the court has to sanction the
scheme or reject, if it is against the
public interest or if it feels that the
scheme is not beneficial.
 The legal provisions vary based the
mode of scheme adopted by the
company.

Modes of Reconstruction or
Amalgamation
 By sale of undertaking- it can be the whole
or part of sale ( the court will decide)
 By sale of shares ( Maximum number of
companies adopt this scheme- In such
schemes the shares are sold and
registered in the name of the purchasing
company or on its behalf. The shareholders
selling the shares are compensated either
by cash or with the shares of the acquiring
company.
 Amalgamation can take place even for the
sake of Public interest by the central
government. In such cases, it will be
notified in the official gazette.

Mergers, Acquisitions and
Take over of companies
 Merger connotes union of two or
more commercial interests,
corporations, undertakings, bodies or
any other entities.
 Fusion of two or more corporations
by the transfer of all property to a
single corporation. It is used as a
synonym for amalgamation. Even
the Act makes no distinction between
merger and amalgamation.


The changing of legal entity
after mergers and acquisitions
 In a merger- one of the company
loses its corporate existence and the
survivor company acquires the
assets as well as the liabilities of the
merger company.
 In acquisition, it is acquiring the
ownership in the property is the
purchase of a controlling interest in
the share capital of another existing
company. It is an act of acquiring
asset and management of the
company.

Winding up
 It is the process whereby the life of the
company is ended and its property is
administered for the benefit of its creditors
and members.
 During this process a liquidator is
appointed to take control of the company.
The liquidator will be responsible for the
assets, debts and final distribution of the
surplus to the members.
 It is the process for discharge of liabilities
and returning the surplus to those who are
entitled for it.
 But even a company which is making profit
can be wound up is the special feature of
winding up , which is different from that of
the process of insolvency.

How can be company be
wound up?
 By passing a special resolution
 If there is a default in holding the
statutory meeting
 Failure to commence the business
 If there is reduction in the
membership of the minimum number
of members as per the statutory
requirement
 If it not able to pay its debts

Modes of winding up
 Compulsory winding up under the
supervision of the court
(Reasons as stated in the previous slide)
Compulsory winding up may happen for
just and equitable reasons also.
The just and equitable grounds can be like
loss of substratum , where there is dead
lock in the management, etc
 Voluntary winding up ( Members voluntary
winding up and creditors voluntary winding
up)
 Voluntary winding up subject to the
supervision of the court.

Winding up procedure
 A petition for winding up has to be
filed by the concerned person to the
prescribed authority
 Liquidator to be appointed to
safeguard the property of the
company
 Then the court will hear the matter
and pass necessary orders. It can
dismiss the petition or pass an order
of winding up

Dissolution of the company
 When the company ceases to exist
as a corporate entity for all practical
purposes it is said to have been
dissolved.
 Dissolution has to be declared by the
court.
 It will not be extinct and will be kept
under suspension for 2 Years.
 The order has to be forwarded by the
liquidator to the Registrar of the
Companies within 30 days from the
date of the order of dissolution.

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