Alteration of the Memorandum :
(i) Procedure of alteration of memorandum: Section 13 of the Companies Act, 2013 provides the provisions that deal with the alteration of the memorandum. The provision says that-
(1) Alteration by special resolution: Company may alter the provisions of its memorandum with the approval of the members by a special resolution.
(2) Name change of the company: Any change in the name of a company shall be effected only with the approval of the Central Government in writing:
As per the Notification S.O. 1353(E), dated 9th Of July, 2014. In exercise of powers conferred by Section 458 of the Companies Act, 2013 & in supersession of the notification of the Government of India, MCA, dated the 10.07.2012 published in the Gazette of India, Extraordinary, Part-II, Sec-3, sub-sec (ii) vide no. S.O. 1538(E), dated 10.07.2012, in so far as it relates to items (a) to (b) & items (d) to (e), except as respect things done or omitted to be done before such supersession, the Central Government. hereby delegates to the ROC the power & functions vested in it under the this section [i.e. section 13(2)] of the said Act, subject to the condition that the Central Government may revoke such delegation of powers or may itself exercise the powers & functions under the said sections, if in its opinion, such course of action is necessary in the public interest.
However, no such approval shall be necessary where the change in the name of the company is only the deletion therefrom, or addition thereto, of the word “Private”, on the conversion of any one class of companies to another class.
The change of name shall not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures or interest on deposits or debentures.
[The Companies (Incorporation) Rules, 2014]
(3) Entry in register of companies: On any change in the name of a company, the Registrar shall enter the new name in the register of companies in place of the old name and issue a fresh certificate of incorporation with the new name and the change in the name shall be complete and effective only on the issue of such a certificate.
(4) Change in the registered office: The alteration of the memorandum relating to the place of the registered office from one State to another shall not have any effect unless it is approved by the Central Government on an application in such form and manner as may be prescribed.
(5) Dispose of the application of change of place of the registered office: The Central Government shall dispose of the application of change of place of the registered office within a period of sixty days.
Before passing of order, Central Government may satisfy itself that-
♦ the alteration has the consent of the creditors, debenture-holders and other persons concerned with the company, or
♦ the sufficient provision has been made by the company either for the due discharge of all its debts and obligations, or
♦ adequate security has been provided for such discharge.
Vide Notification S.O. 1352(E) dated 21.05.2014 in exercise of powers conferred by Section 458 of the Companies Act, 2013 & in supersession of the notification of the Government of India, MCA, dated the 10.07.2012 published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-Section (ii) vide no. S.O. 1539(E), dated 10.07.2012, in so far as it relates to items (a) to (f) & items (n), except as respect things done or omitted to be done before such supersession, the Central Govt. hereby delegates to the RD at Mumbai, Kolkata, Chennai, Noida, Ahmedabad, Hyderabad & Shillong, the power & functions vested in it under the following sections of the said Act, subject to the condition that the Central Govt. may revoke such delegation of powers or may itself exercise the powers & functions under this section [i.e.13 (4) &(5)], if in its opinion, such course of action is necessary in the public interest :-
(6) Filing with Registrar: A company shall, in relation to any alteration of its memorandum, file with the Registrar—
♦ the special resolution passed by the company under sub-section (1);
♦ the approval of the Central Government under sub-section (2), if the alteration involves any change in the name of the company.
(7) Filing of the certified copy of the order with the registrar of the states: Where an alteration of the memorandum results in the transfer of the registered office of a company from one State to another, a certified copy of the order of the Central Government approving the alteration shall be filed by the company with the Registrar of each of the States within such time and in such manner as may be prescribed, who shall register the same.
(8) Issue of fresh certificate of incorporation: The Registrar of the State where the registered office is being shifted to, shall issue a fresh certificate of incorporation indicating the alteration.
(9) Change in the object of the company: A company, which has raised money from public through prospectus and still has any unutilised amount out of the money so raised, shall not change its objects for which it raised the money through prospectus unless a special resolution through postal ballot is passed by the company and—
♦ the details, in respect of such resolution shall also be published in the newspapers (one in English and one in vernacular language) which is in circulation at the place where the registered office of the company is situated and shall also be placed on the website of the company, if any, indicating therein the justification for such change;
♦ the dissenting shareholders shall be given an opportunity to exit by the promoters and shareholders having control in accordance with regulations to be specified by the Securities and Exchange Board.
(10) Registrar to certify the registration on the alteration of the objects: The Registrar shall register any alteration of the memorandum with respect to the objects of the company and certify the registration within a period of thirty days from the date of filing of the special resolution.
(11) Alteration to be registered: No alteration made under this section shall have any effect until it has been registered in accordance with the provisions of this section.
(12) Only member have a right to participate in the divisible profits of the company: Any alteration of the memorandum, in the case of a company limited by guarantee and not having a share capital, intending to give any person a right to participate in the divisible profits of the company otherwise than as a member, shall be void.
(ii) Rectification of name of memorandum: (1) Central government to issue direction: According to section 16 of the Companies Act,2013, the Central Government is empowered to give direction to the company to rectify its name (Where the name is identical with or too nearly resembles the name by which a company in existence had been previously registered, or the name is identical with or too nearly resembling to a registered trade mark) within a period of 3 months or 6 months, as the case may be, from the issue of such direction by passing an ordinary resolution.
(2) Notice of change to the registrar: Where a company changes its name or obtains a new name, it shall within a period of 15 days from the date of such change, give notice of the change to the Registrar along with the order of the Central Government, who shall carry out necessary changes in the certificate of incorporation and the memorandum.
(3) Default in compliance with the direction: If a company makes default in complying with any direction-
| Liable person | Penalty/punishment |
| Company | Fine of 1,000 rupees for every day during which the default continues |
| Every Officer who is in default | Fine varying from 5,000 rupees to 1 lakh rupees. |
Vide Notification S.O. 1352(E) dated 21.05.2014 in exercise of powers conferred by Section 458 of the Companies Act, 2013 & in supersession of the notification of the Government of India, MCA, dated the 10.07.2012 published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-Section (ii) vide no. S.O. 1539(E), dated 10.07.2012, in so far as it relates to items (a) to (f) & items (n), except as respect things done or omitted to be done before such supersession, the Central Govt. hereby delegates to the RD at Mumbai, Kolkata, Chennai, Noida, Ahmedabad, Hyderabad & Shillong, the power & functions vested in it under the following sections of the said Act, subject to the condition that the Central Govt. may revoke such delegation of powers or may itself exercise the powers & functions under this section [i.e.16], if in its opinion, such course of action is necessary in the public interest,:-