TMI Blog2017 (5) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the conversion by requisite alteration in its Articles which is hereby addressed and communicate the altered Articles within a period of 15 days to the Registrar. - C.P. NO. 75/14(1)/NCLT/MB/MAH/2017 - - - Dated:- 4-4-2017 - MR. M.K. SHRAWAT, J. For The Petitioner : Compliance Officer ORDER 1. Petition under consideration was filed on 2nd March 2017 under the provisions of Sec. 14(1)(b) of Companies Act, 2013 (herein below referred as the Act ). At the outset, it is worth to reproduce the relevant portion of the Section as under:- Alteration of Articles. 14. (1) Subject to the provisions of this Act and the conditions contained in its memorandum, if any, a company may, by a special resolution, alter it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistry has been drawn to difficulties being faced by stakeholders while filing form INC-27 for conversion of a public company into a private company. The relevant provisions of Companies Act, 2013 (second proviso to sub-section (1) and sub-section (2) of section 14) have not been notified. In view of this, the corresponding provisions of Companies Act, 1956 (Proviso to sub-section (1) and sub-section (2A) of Section 31) shall remain in force till corresponding provisions of Company's Act, 2013 are notified. The Central Government has delegated such powers under the Companies Act, 1956 to the Registrar of companies (ROCs) vide item No. (c) of the notification number S.O. 1538(E) dated the 10th July, 2012 and this delegated power remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a result, the powers conferred vide section 14(2) of the Act to the Tribunal (NCLT) to pass an appropriate order in connection of proposed conversion had superseded the old provisions. Therefore, the operation of Rule 33 of the Companies (Incorporation) Rule 2014 shall be limited to give effect of the order of NCLT by the Registrar within fifteen days on receipt. (b)Second reason to proceed with the matter is that once the provision of Section 14(2) (now stood notified supra) has enshrined power to NCLT; hence, the Statute prevails over the Rules. There are no two opinions in respect of this accepted position of interpretation of statute. 5. The outcome of the above discussion is that the issue of conversion of Private company into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article. 6. In addition to the introduction of Section 14 in Companies Act, 2013, the MCA vide a Notification dated 21st July, 2016 (published in Gazette of India on 22nd August, 2016 GSR 716 (E)) also framed National Company Law Tribunal Rules, 2016. The Rule connected to conversion of Public Company to Private Company is Rule 68 which has laid down the guidelines for the implementation of such conversion. A Petition for conversion of Public Company to Private Company is required to accomplish the conditions laid down under Rule 68 of NCLT Rules 2016. For the purpose of disposal of this Company Petition the conditions accomplished by this Petitioner as prescribed in the Rule are examined as under:- (a)The Board of Directors of Perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teration of Articles of the Company. (c) The members approved the proposed alteration in the Extra Ordinary General Meeting held on 1st December, 2016. (d) As on 31st December, 2016 the Company does not have any creditors and debenture holders as certified by the Directors. And same has been enclosed as Annexure 9 dated 25th Jan 2017. (e) To give effect of the proposed conversion, Memorandum of Association (MOA) and Articles of Association (AOA) of the Company shall undergo a change. The copy of altered Memorandum of Association (MOA) and Articles of Association (AOA) is also enclosed as Annexure 8. (c)As shown in their Company Petition the capital structure of Petitioner Company is as under:- I. PARTICULARS OF CO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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