Change in MOA & AOA -Things to remember

CA Pratik Anand

Things to remember while altering/ Amending/ Changing Memorandum of Association (MOA) or Articles of Association (AOA) under Companies Act’2013.
This article contains important points to remember when altering/changing the MOA and AOA of a Company.

Memorandum of association contains following clauses:

(a) Name of the Company,

(b) State of India where registered office of the company is situated,

(c) Main objects of the Company and matters considered necessary in furtherance thereof,

(d) Liability of members of the company; and

(e) Authorised share capital of the company.

Every alteration in the MOA will be made only in these clauses, either in all or any of these clauses. Therefore the situations under which the MOA needs to be altered are:

Change in the name of the Company.
Change of registered office of the Company.
Change in Object Clause of the company.
Change in authorised capital of the company.
Change in the liability of the members of the company.
What is the procedure for alteration/Change in MOA under Companies Act’2013?

Alteration in the Memorandum of Association can be made by following the procedure under section 13 of the Companies Act’2013.
This section is applicable to all companies.
Hold board meeting to recommend the proposal for members’ consideration by passing special resolution.
Give notice of Extraordinary general meeting in which special resolution is to be passed. The notice shall specify the place, date, day and time of the meeting and contain a statement on the business to be transacted at the EGM.
Since alteration of the memorandum is a special business therefore an explanatory statement u/s 102 of the Companies Act’2013 shall be accompanied with the notice of the meeting in which special resolution is to be passed.
Special resolution: For alteration of any of the clauses of memorandum of association, except the capital clause, consent of members by way of special resolution is required. However, in case of alteration of authorised share capital, consent of members by way of ordinary resolution as stated in section 61 is required.
The company is required to file special resolution passed by shareholders for alteration of memorandum of association with the Registrar of Companies. Form MGT-14 has to be filed for registration of special resolution within 30 days of passing of resolution.
A certified copy of the special resolution alongwith notice and explanatory statement of the general meeting in which resolution is passed and the altered memorandum and articles are to be attached as attachments to the form MGT-14. Copy of approval from the central govt. filed with the registrar in case of change in name and registered office clauses of the memorandum.
Alteration made under section 13 shall not have any effect until it has been registered.
Adoption of new set of Memorandum and articles as per Companies Act’2013

Here another thing to be kept in mind while altering the Memorandum and articles is that the Registrar may ask for adoption of new set of memorandum and articles in line with the new Companies Act’2013.

Major reason for that is the change in format of Memorandum and articles under the previous act and the new act’2013.

Major difference between the memorandum under Companies Act’1956 and 2013 is the object clause. While the Object clause under the 1956 Format included three sub-clauses:

Main objects,
Incidental and ancillary objects and
Other objects
The format under the Companies Act’2013 includes only two sub clauses:

THE OBJECTS TO BE PURSUED BY THE COMPANY ON ITS INCORPORATION i.e Main Objects.
MATTERS WHICH ARE NECESSARY FOR FURTHERANCE OF THE MAIN OBJECTS.
Therefore while altering the object clause it is advisable for the company:

To amend the title of incidental object Clause of the Memorandum Of Association by passing the following resolution:
“Clause III (B) of the objects that are incidental or ancillary to the attainment of the main objects of the Memorandum of Association be and hereby replaced with the title “MATTERS WHICH ARE NECESSARY FOR FURTHERANCE OF THE OBJECTS SPECIFIED IN CLAUSE III (A) ARE:-“
To Delete the other objects clause of the Memorandum Of Association:
Pursuant to the provisions of Section 4, 13 and all other applicable provisions, if any, of the Companies Act, 2013, (including any amendment thereto or re-enactment thereof), and subject to necessary approval(s) if any, from the competent authorities,the Other Objects Clause of the Memorandum of Association of the Company be removed by completely deleting the clause III (C ).
ADOPTION OF NEW SET OF ARTICLES OF ASSOCIATION

Pursuant to the provisions of Section 14 and other applicable provisions, if any, of the Companies Act, 2013, (including any amendment thereto or re-enactment thereof), the Articles of Association of the Company should be altered thereby replacing all the existing regulations with the new regulations.

The statutory backing for adopting new set of memorandum and articles is given in Section 6 of the Companies Act’2013 which is given as follows:

“(b) Any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be.”

Therefore, the provisions under the old memorandum/articles may be repugnant i.e contradictory/inconsistent with the provisions of the Companies Act’2013 and hence may be termed as void therefore it is advisable to adopt new set of memorandum and articles as per Companies Act’2013.

CA Pratik Anand