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Company Law - Project
Company Law - Project
The word 'Company' is an amalgamation of the Latin word 'Com' meaning "with or
together" and 'Pains' meaning "bread". Originally, it referred to a group of persons
who took their meals together. A company is nothing but a group of persons who
have come together or who have contributed money for some common person and
who have incorporated themselves into a distinct legal entity in the form of a
company for that purpose. Under Halsbury’s Laws of England, the term "company"
has been defined as a collection of many individuals united into one body under
special domination, having perpetual succession under an artificial form and vested
by the policies of law with the capacity of acting in several respect as an individual,
particularly for taking and granting of property, for contracting obligation and for
suing and being sued, for enjoying privileges and immunities in common and
exercising a variety of political rights, more or less extensive, according to the design
of its institution or the powers upon it, either at the time of its creation or at any
subsequent period of its existence. However, the Supreme Court of India has held in
the case of State Trading Corporation of India v/s CTO that a company cannot have
the status of a citizen under the Constitution of India.
A company as an entity has several distinct features which together make it a unique
organization. The following are the defining characteristics of a company :-
Limited Liability :
The liability of the members of the company is limited to contribution to the assets of
the company upto the face value of shares held by him. A member is liable to pay
only the uncalled money due on shares held by him when called upon to pay and
nothing more, even if liabilities of the company far exceeds its assets. On the other
hand, partners of a partnership firm have unlimited liability i.e. if the assets of the
firm are not adequate to pay the liabilities of the firm, the creditors can force the
partners to make good the deficit from their personal assets. This cannot be done in
case of a company once the members have paid all their dues towards the shares
held by them in the company.
Perpetual Succession:
A company does not die or cease to exist unless it is specifically wound up or the task
for which it was formed has been completed. Membership of a company may keep on
changing from time to time but that does not affect life of the company. Death or
insolvency of member does not affect the existence of the company.
Separate Property:
A company is a distinct legal entity. The company’s property is its own. A member
cannot claim to be owner of the company's property during the existence of the
company.
Transferability of Shares:
Shares in a company are freely transferable, subject to certain conditions, such that
no share-holder is permanently or necessarily wedded to a company. When a
member transfers his shares to another person, the transferee steps into the shoes of
the transferor and acquires all the rights of the transferor in respect of those shares.
Common Seal:
A company is a artificial person and does not have a physical presence. Therefore, it
acts through its Board of Directors for carrying out its activities and entering into
various agreements. Such contracts must be under the seal of the company. The
common seal is the official signature of the company. The name of the company
must be engraved on the common seal. Any document not bearing the seal of the
company may not be accepted as authentic and may not have any legal force.
Separate Management:
A company is administered and managed by its managerial personnel i.e. the Board
of Directors. The shareholders are simply the holders of the shares in the company
and need not be necessarily the managers of the company.
1. A Partnership firm is sum total of persons who have come together to share
the profits of the business carried on by them or any of them. It does not have
a separate legal entity. A Company is association of persons who have come
together for a specific purpose. The company has a separate legal entity as
soon as it is incorporated under law.
2. Liability of the partners is unlimited. However, the liability of shareholders of a
limited company is limited to the extent of unpaid share or to the tune of the
unpaid amount guaranteed by the shareholder.
3. Property of the firm belongs to the partners and they are collectively entitled
to it. In case of a company, the property belongs to the company and not to
its members.
4. A partner cannot transfer his shares in the partnership firm without the
consent of all other partners. In case of a company, shares may be transferred
without the permission of the other members, in absence of provision to
contrary in articles of association of the company.
5. In case of partnership, the number of members must not exceed 20 in case of
banking business and 10 in other businesses. A Public company may have as
many members as it desires subject to a minimum of 7 members. A Private
company cannot have more than 50 members.
6. There must be at least 2 members in order to form a partnership firm. The
minimum number of members necessary for a public limited company is
seven and two for a private limited company.
7. In case of a partnership, 100 % consensus is required for any decision. In case
of a company, decision of the majority prevails.
8. On the death of any partner, the partnership is dissolved unless there is
provision to the contrary. On the death of the shareholder the company'
existence does not get terminated.
Illegal Association:
Under the Companies Act, 1956, not more than 10 persons can come together for
carrying on any banking business and not more than 20 persons can come together
for carrying on any other of business, unless the association is registered under the
Companies Act or any other Indian law. Any association which does not comply with
the above norms is an illegal association. Therefore, a partnership of more 10 or 20
members, as the case may be, is an illegal association unless the registered under
the Companies Act or any other Indian law.
1. A Joint Hindu Family business comprising of family members only. But where
two or more Joint Hindu families come together for business through
partnership, the total number of members cannot exceed 10 or 20 as the case
may be, but in computing the number of persons, minor members of such
family will be excluded.
2. Any association of charitable, religious, scientific trust or organisation which is
not formed with a profit motive
3. Foreign companies.
When the number of members exceed the prescribed maximum, members must
register it under Companies Act or any other Indian law.
Consequences of non-registration:
An illegal association is not recognised by law. An illegal association cannot enter into
any contract, cannot sue any members or any outsider, cannot be sued by any
members or outsiders for any of its debts. The members of the illegal association are
personally for the obligations of the illegal association. A member may be liable to a
fine of Rs. 1000. Any member of an illegal association cannot sue another member in
respect of any matter connected with the association.
Types of Companies
1.Public Company means a company which not a private company.
Following are some of the privileges and exemptions of a private limited company:-
The Company Law Board on being satisfied that the infringement of the aforesaid 3
conditions was accidental or due to inadvertence or that on other grounds, it just an
equitable to grant relief, may grant relief to the company from the consequences of
such infringement. The infringement of the aforesaid 3 conditions does not
automatically convert a private company into a public company. It continues to
remain a private company; it merely ceases to be entitled to the privileges and
exemptions available to a private company.
1. Where at least 25% of the paid up share capital of a private company is held
by one or more bodies corporate, the private company shall automatically
become the public company on and from the date on which the aforesaid
percentage is so held.
2. Where the annual average turnover of the private company during the period
of three consecutive financial years is not less than Rs 25 crores, the private
company shall be, irrespective of its paid up share capital, become a deemed
public company.
3. Where not less than 25% of the paid up capital of a public company limited is
held by the private company, then the private company shall become a public
company on and from the date on which the aforesaid percentage is so held.
4. Where a private company accepts deposits after the invitation is made by
advertisement or renews deposits from the public (other than from its
members or directors or their relatives), such companies shall become public
company on and from date such acceptance or renewal is first made.
5.Section 25 Companies: Under the Companies Act, 1956, the name of a public
limited company must end with the word 'Limited' and the name of a private limited
company must end with the word 'Private Limited'. However, under Section 25, the
Central Government may allow comapnies to remove the word "Limited / Private
Limited" from the name if the following conditions are satisfied :-
1. The company is formed for promoting commerce, science, art, religion, charity
or other socially useful objects
2. The company does not intend to pay dividend to its members but apply its
profits and other income in promotion of its objects.
7.Government Companies
Means any company in which not less than 51% of the paid up share capital is held
by the Central Government or any State Government or partly by the Central
Government and partly by the one or more State Governments and includes a
company which is a subsidiary of a government company. Government Companies
are also governed by the provisions of the Companies Act. However, the Central
Government may direct that certain provisions of the Companies Act shall not apply
or shall apply only with such exceptions, modifications and adaptions as may be
specified to such government companies.
8. Foreign Companies
Means a company incorporated in a country outside India under the law of that other
country and has established the place of business in India.