11 July 2009
in the act there is provision that if public co. give offer to more than 50 members than it will deemed as public offer then co. hv to follow the procedure which include prospectus etc.
now the problem is:
1.in a public co. (unlisted)there are more than 50 share applicant but co. has not follow the procedure of public offer at the time of giving offer n now is is too late.
2.if the co. treat apart of share application money as deposit then there should be the procedure i.e advrtisement of deposit etc. but it is also too late.
11 July 2009
Now conduct EGM ratify the same and pass 81(1a) resolution as per comanies act, file the douments with roc alongwith statement in lieu of prospectus. After approval from roc allot the shares.
I would like to draw your kind attention towards Section 43 which reads as follows:
43. Consequences of default in complying with conditions constituting a company a private company
Where the articles of a company include the provision which, under clause (iii) of sub-section (1) of section 3, are required to be included in the articles of a company in order to constitute it a private company, but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private companies by or under this Act, and this Act shall apply to the company as if it were not a private company:
Provided that the 1[Central Government], on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the 1[Central Government], just and expedient, order that the company be relieved from such consequences as aforesaid.
I would advise you to go for condonation of your default in order to good the default.
CAclubindia
