12 December 2013
Date of Incorporation of Company- 16.03.2012 Authorised, issued n subscribed capital as on 31.03.2013 is 500000.00 BM issue of shares to subscribers 15.04.2012 Money received from subscribers is as follows Particulars Receiving date Subscriber 1 28.05.2012 Subscriber 2 08.06.2012
Bank Account opening date is 05.05.2012
my querry is whether subscribers to MOA can be allotted shares on 15.04.2012 ie before receiving the share money from them.. is it possible? or it has to be done only after receipt of share amount? wud this lead to contravention of section 3(1)(iii) of Companies act, 1956 and what are the implications for issuance of share certificate?
Provisions of section 12(1) of the Companies Act, 1956 are relevant in this situation, which provides that in order to form a public company limited by shares at least seven persons and in case of a private company limited by shares at least two persons have to subscribe their names to Memorandum of Association. Following conditions in that matter shall be ensured by the subscribers:—
(i) No subscriber of the Memorandum of a company having a share capital shall take less than one share, [Section 13(4)(b)] and
(ii) Each subscriber of the Memorandum shall write opposite to his name, the number of shares he takes. [Section 13(4)(c)]
Subscribers can be either literate or illiterate, man or woman, either resident or non-resident, either Indian national or foreign national, etc. A company being an artificial legal person can also be a subscriber.
Even though the signature of a subscriber to memorandum of association of a company is not properly attested, once the memorandum has been registered, such subscriber cannot divest himself of his liability.
A subscriber to memorandum cannot, after issue of certificate of registration, repudiate his subscription on ground that he was induced to sign by misrepresentation of an agent of company. [Metal Constituents Ltd., In re (1902) 1 Ch. 707].
If subscribers to memorandum have any objection to memorandum and articles of association, the time to object is before putting their signatures to it. [East Bengal Sugar Mills Ltd., In re (1941) 11 Comp Cas 169 (Cal)].
In accordance with the provisions of section 36(2) of the Companies Act, 1956, all money payable by any member to the company under the MOA or AOA shall be debt due from him to the company. Further, a subscriber to the memorandum must pay for his shares in cash even if the promoters have promised him the shares for services rendered in connection with the promotion of the company.
CAclubindia
