MEMORANDUM OF ASSOCIATION
Author: Deepanshi Kalra
Memorandum of Association is defined in Section 2 (56) of the Company Act 2013 as – the “Memorandum” refers to the memorandum of the company as drawn up initially during the formation of the company or as changed periodically to carry out any action as per any other law of the Act.
MOA is a document that contains fundamental provisions including essential conditions upon which alone the company is incorporated. It is also known as the charter of the company as it defines the constitution of the company. Also, as a charter, it determines the company’s existence, operations, and powers.
The MOA can be originally framed or it can be an altered MOA. However, the alteration must be in pursuance of previous company law of 1956 or the Company Act 2013.
MOA is the most essential document when a company is formed, it shares the object of the company, determines possible score beyond which the company cannot function.
In the formation of the company, the key element is that the company’s shareholders must know the purpose for which the investment in bringing it together is used.
It enables the shareholders, creditors, and other persons to determine the power and range of activities. A person dealing with the company will know that in which he is contracting/ entering is within its object or not.
CONTENTS OF MOA
Section 4 of the Company Act, 2013 states the constituents of an MOA:
1. Name Clause – The first clause states that the company’s name must be stated in the MOA. But there are certain limitations for that :
- The name of the company must not be identical to an existing company.
- The name of the company should not be undesirable in the opinion of the government.
- The name should not mislead the public in any way i.e the company should avoid using a name which is prohibited under the Emblems & Names Act, 1950.
- The company should refrain from using a name in connection with government or state patronage without prior approval of the government.
- It is also important that if the company is limited by shares then the name of the company should end with ‘Private Limited’.
2. Registered Office Clause – The company’s MOA must contain the name of the state in which the company’s registered office is located. It is essential that the company must have its registered office within 15 days from the date of its incorporation and the same must be verified within 30 days. This condition is mandatory to fix the domicile of the company.
3. Object Clause – This clause determines the object of the company, its purpose for setting up. This is a key clause as the company cannot conduct any activity which is not specified in the object’s clause. This clause includes-
- Main object
- Ancillary object
- Other objects
There are certain restricts or pre-conditions in framing this clause:
- Not ambiguous in its purpose.
- Not contain any illegal object.
- Not be against provisions of the Company Act
- Not be against the country’s public policy
4. Liability Clause – This clause mandates every company to specific the liability of the share of its members or subscribers.
- If the company is limited by shares then the members are only liable to pay the unpaid costs.
- If the company is limited by guarantee, then this makes the members liable to pay the amount during the liquidation of the company.
- If the liability is unlimited then the members’ personal assets vare also involved.
5. Capital Clause – This clause contains the amount through which the company was registered initially with each denomination. This clause is included in the company which is of share capital. So this clause is required when the company is of share capital so that its formation amount can be mentioned.
6. Subscription or Association Clause – This clause contains the amount of authorized share capital and the shares taken by each member. Each member should have a minimum one share under their name and the memorandum must be signed in presence of at least one witness to attest the signature. So one can be a subscriber of the company if they have at least one share and every subscriber is bound to sign the MOA.
FORMS OF MEMORANDUM
Section 4 of the Act provides the forms in accordance with which the memo must be formed as given in Schedule 1. The memorandum of a company is supposed to be adopted as per the forms outlined below:
|o Form in Table A – Companies limited by shares. |
o Form in Table B – Companies limited by guarantee and do not have an authorized share capital.
o Form in Table C – Companies limited by guarantee and have an authorized share capital.
o From is Table D – Unlimited companies that do not have an authorized share capital.
o Form in Table E – Unlimited companies that have an authorized share capital.
SUBSCRIPTION TO MOA
Subscriber means any person who had purchased the share of the company at the time of its incorporation. Subscribers are considered as the shareholder of the company and are an important part of the company as they are also mentioned in the MOA.
When the company is registered the subscriber has to pay their share which is included within 180 days in the current account of the company when it is incorporated.
Details of the subscribers in the MOA include:
- Name, Address, description, and Occupation of the subscriber.
- Number of shares taken by each subscriber.
- Signature of the Subscriber.
- Name, address, description, occupation, and signature of the witnesses.
In case the subscriber is not present for the signature, he can authorize another person to affix it by granting him the power of attorney. In such case, the details aforementioned, of the authorized person for signature must also be stated in the MOA.
PRINTING AND SIGNING OF MOA
The MOA of the Company must be printed which is a necessary condition. It must also be signed by each member i.e. 7 members in case of a public company and 2 members in a private company. This has to be done in the presence of a witness. When there is a formation of One Person Company (OPC) the presence of a nominee is essential so that the membership can be transferred if there is a death or in case of incapability.
ALTERATION OF MOA
Under Section 13 of the Company Act, 2013, the clauses of the MOA can be altered by following the prescribed procedures. The amendment can be done if there is any change in the following clauses:
- A change in the name of the company.
- A change in the location of the registered office.
- A change in the object clause of the company.
- A change in the authorized capital of the company.
- Any other adjustments made in the legal liabilities of the members of the business.
All the alterations in the MOA are done through a special resolution passed by adhering to the steps provided in the procedure. In order to bring the alterations to effect it has to be registered within 30 days with the registrar of the company after the resolution is passed.