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CHAPTER XXI
PART I.— Companies
Authorised to Register
Under this Act
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Section 366: Companies Capable
of Being Registered
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(1) For the purposes of this Part, the
word “company” includes any partnership
firm, limited liability partnership,
cooperative society, society or any
other business entity formed under any
other law for the time being in force
which applies for registration under
this Part.
(2) With the exceptions and subject to
the provisions contained in this
section, any company formed, whether
before or after the commencement of
this Act, in pursuance of any Act of
Parliament other than this Act or of
any other law for the time being in
force or being otherwise duly
constituted according to law, and
consisting of 1[two or more
members], may at any time register
under this Act as an unlimited company,
or as a company limited by shares, or
as a company limited by guarantee, in
such manner
as may be prescribed
and the registration shall not be
invalid by reason only that it has
taken place with a view to the
company’s being wound up:
Provided that—
(i) a company registered under the
Indian Companies Act, 1882 or under the
Indian Companies Act, 1913 or the
Companies Act, 1956, shall not register
in pursuance of this section;
(ii) a company having the liability of
its members limited by any Act of
Parliament other than this Act or by
any other law for the time being in
force, shall not register in pursuance
of this section as an unlimited company
or as a company limited by guarantee;
(iii) a company shall be registered in
pursuance of this section as a company
limited by shares only if it has a
permanent paid-up or nominal share
capital of fixed amount divided into
shares, also of fixed amount, or held
and transferable as stock, or divided
and held partly in the one way and
partly in the other, and formed on the
principle of having for its members the
holders of those shares or that stock,
and no other persons;
(iv) a company shall not register in
pursuance of this section without the
assent of a majority of such of its
members as are present in person, or
where proxies are allowed, by proxy, at
a general meeting summoned for the
purpose;
(v) where a company not having the
liability of its members limited by any
Act of Parliament or any other law for
the time being in force is about to
register as a limited company, the
majority required to assent as
aforesaid shall consist of not less
than three-fourths of the members
present in person, or where proxies are
allowed, by proxy, at the meeting;
(vi) where a company is about to
register as a company limited by
guarantee, the assent to its being so
registered shall be accompanied by a
resolution declaring that each member
undertakes to contribute to the assets
of the company, in the event of its
being wound up while he is a member, or
within one year after he ceases to be a
member, for payment of the debts and
liabilities of the company or of such
debts and liabilities as may have been
contracted before he ceases to be a
member, and of the costs, charges and
expenses of winding up, and for the
adjustment of the rights of the
contributories among themselves, such
amount as may be required, not
exceeding a specified amount.
(vii) a company with less than
seven members shall register as a
private company.]
(3) In computing any majority required
for the purposes of sub-section
(1),when a poll is demanded, regard
shall be had to the number of votes to
which each member is entitled according
to the regulations of the company.
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Section 367: Certificate of
Registration of Existing
Companies
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On compliance with the requirements of
this Chapter with respect to
registration, and on payment of such
fees, if any, as are payable under
section 403
, the Registrar shall certify under his
hand that the company applying for
registration is incorporated as a
company under this Act, and in the case
of a limited company that it is limited
and thereupon the company shall be so
incorporated.
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Section 368: Vesting of
Property on Registration
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All property, movable and immovable
(including actionable claims),
belonging to or vested in a company at
the date of its registration in
pursuance of this Part, shall, on such
registration, pass to and vest in the
company as incorporated under this Act
for all the estate and interest of the
company therein.
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Section 369: Saving of Existing
Liabilities
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The registration of a company in
pursuance of this Part shall not affect
its rights or liabilities in respect of
any debt or obligation incurred, or any
contract entered into, by, to, with, or
on behalf of, the company before
registration.
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Section
370: Continuation of Pending
Legal Proceedings
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All suits and other legal proceedings
taken by or against the company, or any
public officer or member thereof, which
are pending at the time of the
registration of a company in pursuance
of this Part, may be continued in the
same manner as if the registration had
not taken place:
*
Provided that execution shall not issue
against the property or persons of any
individual member of the company on any
decree or order obtained in any such
suit or proceeding; but, in the event
of the property of the company being
insufficient to satisfy the decree or
order, an order may be obtained for
winding up the compan 1"in accordance with
the provisions of this Act or of the
Insolvency and Bankruptcy Code, 2016" .
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Section
371: Effect of Registration
Under this Part
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(1) When a company is registered in
pursuance of this Part, sub-sections
(2) to (7) shall apply.
(2) All provisions contained in any Act
of Parliament or any other law for the
time being in force, or other
instrument constituting or regulating
the company, including, in the case of
a company registered as a company
limited by guarantee, the resolution
declaring the amount of the guarantee,
shall be deemed to be conditions and
regulations of the company, in the same
manner and with the same incidents as
if so much thereof as would, if the
company had been formed under this Act,
have been required to be inserted in
the memorandum, were contained in a
registered memorandum, and the residue
thereof were contained in registered
articles.
(3) All the provisions of this Act
shall apply to the company and the
members, contributories and creditors
thereof, in the same manner in all
respects as if it had been formed under
this Act, subject as follows:—
(a) Table F in
Schedule I
shall not apply unless and except in so
far as it is adopted by special
resolution;
(b) the provisions of this Act relating
to the numbering of shares shall not
apply to any company whose shares are
not numbered;
(c) in the event of the company being
wound up, every person shall be a
contributory, in respect of the debts
and liabilities of the company
contracted before registration, who is
liable to pay or contribute to the
payment of any debt or liability of the
company contracted before registration,
or to pay or contribute to the payment
of any sum for the adjustment of the
rights of the members among themselves
in respect of any such debt or
liability, or to pay or contribute to
the payment of the costs, charges and
expenses of winding up the company, so
far as relates to such debts or
liabilities as aforesaid;
(d) in the event of the company being
wound up, every contributory shall be
liable to contribute to the assets of
the company, in the course of the
winding up, all sums due from him in
respect of any such liability as
aforesaid; and in the event of the
death or insolvency of any
contributory, the provisions of this
Act with respect to the legal
representatives of deceased
contributories, or with respect to the
assignees of insolvent contributories,
as the case may be, shall apply.
(4) The provisions of this Act with
respect to—
(a) the registration of an unlimited
company as a limited company;
(b) the powers of an unlimited company
on registration as a limited company,
to increase the nominal amount of its
share capital and to provide that a
portion of its share capital shall not
be capable of being called-up except in
the event of winding up;
(c) the power of a limited company to
determine that a portion of its share
capital shall not be capable of being
called-up except in the event of
winding up,
shall apply, notwithstanding anything
in any Act of Parliament or any other
law for the time being in force, or
other instrument constituting or
regulating the company.
(5) Nothing in this section shall
authorise the company to alter any such
provisions contained in any instrument
constituting or regulating the company
as would, if the company had originally
been formed under this Act, have been
required to be contained in the
memorandum and are not authorised to be
altered by this Act.
(6) None of the provisions of this Act
(apart from those of
section 242
) shall derogate from any power of
altering its constitution or
regulations which may be vested in the
company, by virtue of any Act of
Parliament or any other law for the
time being in force, or other
instrument constituting or regulating
the company.
(7) In this section, the expression
“instrument” includes deed of
settlement, deed of partnership, or
limited liability partnership.
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Section
372: Power of Court to Stay or Restrain
Proceedings.
The provisions of this Act "or of the Insolvency and
Bankruptcy Code, 2016, as the case may be" with respect to
staying and restraining suits and other legal proceedings
against a company at any time after the presentation of a
petition for winding up and before the making of a winding
up order, shall, in the case of a company registered in
pursuance of this Part, where the application to stay or
restrain is by a creditor, extend to suits and other legal
proceedings against any contributory of the company.
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Section
373: Suits Stayed on Winding Up Order.
Where an order has been made for winding up, or a
provisional liquidator has been appointed for, a company
registered in pursuance of this Part, no suit or other
legal proceeding shall be proceeded with or commenced
against the company or any contributory of the company in
respect of any debt of the company, except by leave of the
Tribunal and except on such terms as the Tribunal may
impose.
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Section
374: Obligations of Companies
Registering Under this Part
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Every company which is seeking
registration under this Part shall,—
(a) ensure that secured creditors of
the company, prior to its registration
under this Part, have either consented
to or have given their no objection to
company's registration under this Part;
(b) publish in a newspaper,
advertisement one in English and one in
vernacular language in such form
as may be prescribed
giving notice about registration under
this Part, seeking objections and
address them suitably;
(c) file an affidavit, duly notarised,
from all the members or partners to
provide that in the event of
registration under this Part, necessary
documents or papers shall be submitted
to the registering or other authority
with which the company was earlier
registered, for its dissolution as
partnership firm, limited liability
partnership, cooperative society,
society or any other business entity,
as the case may be.
(d) comply with such other conditions
as may be prescribed
.
1
[Provided that upon registration as a
company under this Part a limited
liability partnership incorporated
under the Limited Liability Partnership
Act, 2008 shall be deemed to have been
dissolved under that Act without any
further act or deed.]
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