CA Bhuvnesh Goyal

Section 12 of the Companies Act, 2013 states as follows with respect to Registered Office of Company 2&6[(1) A company shall, 10[within thirty days of its incorporation] and at all times thereafter, have a registered office capable of receiving and acknowledging all communications and notices as may be addressed to it.] (2) The company shall furnish to the Registrar verification of its registered office within a period of 3&7[thirty days] of its incorporation in such manner as may be prescribed. (3) Every company shall— (a) paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in a conspicuous position, in legible letters, and if the characters employed therefor are not those of the language or of one of the languages in general use in that locality, also in the characters of that language or of one of those languages; 1 [(b) have its name engraved in legible characters on its seal, if any;] (c) get its name, address of its registered office and the Corporate Identity Number along with telephone number, fax number, if any, e-mail and website addresses, if any, printed in all its business letters, billheads, letter papers and in all its notices and other official publications; and (d) have its name printed on hundies, promissory notes, bills of exchange and such other documents as may be prescribed: Provided that where a company has changed its name or names during the last two years, it shall paint or affix or print, as the case may be, along with its name, the former name or names so changed during the last two years as required under clauses (a) and (c): Provided further that the words “One Person Company’’ shall be mentioned in brackets below the name of such company, wherever its name is printed, affixed or engraved. (4) Notice of every change of the situation of the registered office, verified in the manner prescribed, after the date of incorporation of the company, shall be given to the Registrar 11[within fifteen days] of the change, who shall record the same. 5&9[(5) Except on the authority of a special resolution passed by a company, the registered office of the company shall not be changed,— (a) in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act or where it may be situated later by virtue of a special resolution passed by the company; and (b) in the case of any other company, outside the local limits of any city, town or village where such office is first situated or where it may be situated later by virtue of a special resolution passed by the company: Provided that no company shall change the place of its registered office from the jurisdiction of one Registrar to the jurisdiction of another Registrar within the same State unless such change is confirmed by the Regional Director on an application made in this behalf by the company in the prescribed manner.] (6) The confirmation referred to in sub-section (5) shall be communicated within a period of thirty days from the date of receipt of application by the Regional Director to the company and the company shall file the confirmation with the Registrar within a period of sixty days of the date of confirmation who shall register the same and certify the registration within a period of thirty days from the date of filing of such confirmation. (7) The certificate referred to in sub-section (6) shall be conclusive evidence that all the requirements of this Act with respect to change of registered office in pursuance of sub-section (5) have been complied with and the change shall take effect from the date of the certificate. (8) If any default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every day during which the default continues but not exceeding one lakh rupees. 14,[13 [12[(9) If the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may cause a physical verification of the registered office of the company in such manner as may be prescribed and if any default is found to be made in complying with the requirements of sub-section (1), he may without prejudice to the provisions of sub-section (8), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.]]] Amendment 1. Substituted by Companies (Amendment) Act, and is effective from 29th May, 2015 In sub-section(1), for Clause (b) i.e. “(b) have its name engraved in legible characters on its seal” the following Clause shall be substituted, namely:- “(b) have its name engraved in legible characters on its seal;if any:” 10. Substituted by the Companies (Amendment) Act,2017- Amendment Effective From 27th July 2018 In section 12 in sub-section (1), for the words “on and from the fifteenth day of its incorporation“, “the words “within thirty days of its incorporation“ shall be substituted. 11.Substituted by the Companies (Amendment) Act,2017- Amendment Effective From 27th July 2018 In section 12 in sub-section (4) for the words:- “within 4&8[fifteen days]” the following words shall be substituted “within thirty days” 12. .Inserted by the Companies (Amendment) Ordinance,2018 Dated 02.11.2018 13. Inserted by the Companies (Amendment) Ordinance,2019 dated 12.01.2019 [Companies (Amendment) Ordinance 2018 is repealed on 12th January 2019] 14. Inserted by the Companies (Amendment) Act,2019 -: Effective From 02nd November 2018 [Companies (Amendment) Second Ordinance 2019 is repealed on 31st July 2019] Exceptions/ Modifications/ Adaptations 2. In case of Specified IFSC Public Company – Sub-section (1) of section 12 the following proviso shall be inserted, namely:- “Provided that a Specified IFSC Public Company shall have its registered office at the International Financial Services Centre located in the approved multi services Special Economic Zone set-up under the Special Economic Zones Act, 2005 read with the Special Economic Zones Rules, 2006, where it is licensed to operate, at all times.”.- Notification Date 4th January, 2017 3. In case of Specified IFSC Public Company – In sub-section (2) of Section 12 for the words “thirty days” read as “sixty days”. – Notification Date 4th January, 2017. 4. In case of Specified IFSC Public Company – In

Section 6 of The Companies Act 2013 speaks about Act to Override Memorandum, Articles, etc as follows Save as otherwise expressly provided in this Act— (a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act; and (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.    

Section 189 of Companies Act 2013 : Register of contracts or arrangements in which directors are interested (1) Every company shall keep one or more registers giving separately the particulars of all contracts or arrangements to which sub-section (2) of section 184 or section 188 applies, in such manner and containing such particulars as may be prescribed and after entering the particulars, such register or registers shall be placed before the next meeting of the Board and signed by all the directors present at the meeting.  (2) Every director or key managerial personnel shall, within a period of thirty days of his appointment, or relinquishment of his office, as the case may be, disclose to the company the particulars specified in sub-section (1) of section 184 relating to his concern or interest in the other associations which are required to be included in the register under that sub-section or such other information relating to himself as may be prescribed.  (3) The register referred to in sub-section (1) shall be kept at the registered office of the company and it shall be open for inspection at such office during business hours and extracts may be taken therefrom, and copies thereof as may be required by any member of the company shall be furnished by the company to such extent, in such manner, and on payment of such fees as may be prescribed.  (4) The register to be kept under this section shall also be produced at the commencement of every annual general meeting of the company and shall remain open and accessible during the continuance of the meeting to any person having the right to attend the meeting.  (5) Nothing contained in sub-section (1) shall apply to any contract or arrangement— (a) for the sale, purchase or supply of any goods, materials or services if the value of such goods and materials or the cost of such services does not exceed five lakh rupees in the aggregate in any year; or (b) by a banking company for the collection of bills in the ordinary course of its business.  (6) Every director who fails to comply with the provisions of this section and the rules made thereunder shall be liable to a penalty of twenty-five thousand rupees. ROC Delhi levied penalty for non compliance Order for Penalty for Violation of Section 118 (1) of the Act, 2013 IN THE MATTER OF LAVA INTERNATIONAL LIMITED (CIN: U32201DL2009PLC188920)   Appointment of Adiudicating Officer: – Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad.II, dated 24.03.2015 appointed Registrar of Companies, NCT of Delhi & Haryana as Adjudicating Officer in exercise of the powers conferred by Section 454(1) of the Act, 2013 (hereinafter known as ‘Act’) r/w Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act. Company: – Whereas the company viz. LAVA INTERNATIONAL LIMITED (herein after known as ‘subject company’) is a registered company with this office under the provisions of Section 7 of the Act having its registered office as per MCA21 Registry at address B-14, House 2, Basement, Shivlok Commercial Complex, Karampura, Delhi-110015 IN. The financial & other details of the subject company for immediately preceding F.Y. as available on MCA-21 portal is stated as under. S.No. Particulars Details 1. Paid up capital Rs. 2,73,90,48,280 2. Turnover (F.Y. 2021-22) a.  Revenue from operation Rs. 18,22,23,60,000 b. Other Income Rs. 20,11,70,000 3. Holding Company No 4. Subsidiary Company Yes <  5. Whether company registered under Section 8 of the Act? No 6. Whether company registered under any other special Act? No 3.  Facts about the Case: I) Whereas, inspection of Subject Company was ordered by Ministry vide letter dated 03.2021 u/s 206(5) of the Companies Act, 2013 in respect of which inspection report u/s 208 of the companies Act, 2013 submitted to RD (NR). During the Inspection, while perusing the minutes for the financial year 2016-17, the I.O observed that the resolutions placed before the Board during the aforesaid financial year for the purpose of bank signatory did not contain the specimen signatures of the authorized signatories and as such were also not contained in the Minutes book which indicate that minutes of the board meeting held on 29.08.2016, 27.10.2016 and 06.03.2017 respectively are incomplete in terms of section 118 of the Companies Act, 2013 II) In terms of the provisions of Section 118 (1) r/w 454 of the Act, this office issued Show Cause Notices (SCN) vide letter no. ROC/D/Adj/2022/Section 118/Lava/2023/673-679 dated 14.02.2023 to the subject company and its officers in default who have not complied with the section 118 of the Act r/w Secretarial Standard -1 (SS-1) issued by Institute of Company Secretaries of India. III) In response to the SCN dated 14.2023, Shri Hari Om Rai, MD of the subject Company submitted a reply vide letter dated 16.01.2023 on behalf of the company and all the noticees and has inter-alia stated that-               (i) The respondent accept the alleged non-compliance of the provision of section 118 of the Act, as more specifically stated in the said SCN and hereby undertake to pay the amount of penalty as may be decided/acijudicate by the acijudicating Officer (AO) for the said non-compliance(s).               (ii) Respondent further like to mention that they do not wish to make any oral submissions on their own or through their authorized representative as mentioned in the SCN and hence, request the AO to issue the acijudication order (‘Order’) as per rule 3(7) of the Companies (Acijudication of Penalties), Rules 4. The relevant provision of the sections 118 as on date of default are as under: Section 118 {Minutes of Proceedings of General Meeting, Meeting of Board of Directors and Other Meeting and Resolutions Passed by Postal Ballot)   (1) Every company shall cause minutes of the proceedings of every general meeting of any class of shareholders or creditors, and every resolution passed by postal ballot and every meeting of its Board of Directors

Section 5 of the Companies Act, 2013 (1) The articles of a company shall contain the regulations for management of the company.  (2) The articles shall also contain such matters, as may be prescribed: Provided that nothing prescribed in this sub-section shall be deemed to prevent a company from including such additional matters in its articles as may be considered necessary for its management. (3) The articles may contain provisions for entrenchment to the effect that specified provisions of the articles may be altered only if conditions or procedures as that are more restrictive than those applicable in the case of a special resolution, are met or complied with.  (4) The provisions for entrenchment referred to in sub-section (3) shall only be made either on formation of a company, or by an amendment in the articles agreed to by all the members of the company in the case of a private company and by a special resolution in the case of a public company.  (5) Where the articles contain provisions for entrenchment, whether made on formation or by amendment, the company shall give notice to the Registrar of such provisions in such form and manner as may be prescribed.  (6) The articles of a company shall be in respective forms specified in Tables, F, G, H, I and J in Schedule I as may be applicable to such company.  (7) A company may adopt all or any of the regulations contained in the model articles applicable to such company.  (8) In case of any company, which is registered after the commencement of this Act, in so far as the registered articles of such company do not exclude or modify the regulations contained in the model articles applicable to such company, those regulations shall, so far as applicable, be the regulations of that company in the same manner and to the extent as if they were contained in the duly registered articles of the company.  (9) Nothing in this section shall apply to the articles of a company registered under any previous company law unless amended under this Act.

Section 4 of the Companies Act, 2013 (1) The memorandum of a company shall state—(a) the name of the company with the last word ―Limited‖ in the case of a public limited company, or the last words ―Private Limited in the case of a private limited company: Provided that nothing in this clause shall apply to a company registered under section 8;(b) the State in which the registered office of the company is to be situated;(c) the objects for which the company is proposed to be incorporated and any matter considered necessary in furtherance thereof;(d) the liability of members of the company, whether limited or unlimited, and also state,—(i) in the case of a company limited by shares, that liability of its members is limited to the amount unpaid, if any, on the shares held by them; and(ii) in the case of a company limited by guarantee, the amount up to which each member undertakes to contribute—(A) to the assets of the company in the event of its being wound-up while he is a memberor within one year after he ceases to be a member, for payment of the debts and liabilities ofthe company or of such debts and liabilities as may have been contracted before he ceases tobe a member, as the case may be; and(B) to the costs, charges and expenses of winding-up and for adjustment of the rights of the contributories among themselves;(e) in the case of a company having a share capital,—(i) the amount of share capital with which the company is to be registered and the division thereof into shares of a fixed amount and the number of shares which the subscribers to the memorandum agree to subscribe which shall not be less than one share; and(ii) the number of shares each subscriber to the memorandum intends to take, indicated opposite his name;(f) in the case of One Person Company, the name of the person who, in the event of death of the subscriber, shall become the member of the company.(2) The name stated in the memorandum shall not— (a) be identical with or resemble too nearly to the name of an existing company registered under this Act or any previous company law; or(b) be such that its use by the company—(i) will constitute an offence under any law for the time being in force; or(ii) is undesirable in the opinion of the Central Government.(3) Without prejudice to the provisions of sub-section (2), a company shall not be registered with a name which contains—(a) any word or expression which is likely to give the impression that the company is in any way connected with, or having the patronage of, the Central Government, any State Government, or any local authority, corporation or body constituted by the Central Government or any State Government under any law for the time being in force; or(b) such word or expression, as may be prescribed, unless the previous approval of the Central Government has been obtained for the use of any such word or expression.(4) A person may make an application, in such form and manner and accompanied by such fee, as may be prescribed, to the Registrar for the reservation of a name set out in the application as—(a) the name of the proposed company; or(b) the name to which the company proposes to change its name.(5) (i) Upon receipt of an application under sub-section (4), the Registrar may, on the basis of information and documents furnished along with the application, reserve the name for a period of sixty days from the date of the application.(ii) Where after reservation of name under clause (i), it is found that name was applied by furnishing wrong or incorrect information, then,—(a) if the company has not been incorporated, the reserved name shall be cancelled and the person making application under sub-section (4) shall be liable to a penalty which may extend to one lakh rupees;(b) if the company has been incorporated, the Registrar may, after giving the company an opportunity of being heard—(i) either direct the company to change its name within a period of three months, after passing an ordinary resolution;(ii) take action for striking off the name of the company from the register of companies; or(iii) make a petition for winding up of the company.(6) The memorandum of a company shall be in respective forms specified in Tables A, B, C, D and E in Schedule I as may be applicable to such company.(7) Any provision in the memorandum or articles, in the case of a company limited by guarantee and not having a share capital, purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member, shall be void.