THE MEMORANDUM AND ARTICLES OF ASSOCIATION
DEFINITIONS AND DIFFERENCES
Definition of Memo
The Memorandum of Association is a document which contains the fundamental rules regarding the construction and activities of a company. It is the basic document which lays down how the company is to be constituted and what work it shall undertake. The purpose of the memorandum is to enable the members of the company, its creditors, and the public to know what its powers are and what is the range of its activities. The memorandum contains rules regarding the capital structure, the liability of the members, the objects of the company, and all other important matters relating to the company. The memorandum is altered only after certain formalities are observed.
The Importance of the Memo
The Memorandum shows the range of the enterprise. The memorandum is the foundation on which the superstructure of the company has been built up. It enables the shareholders, creditors and outsiders to show the permitted activities of the company._ Egyptian Salt and Soda Co. Ltd. v. Port Salid Salt Association Lid
Definition of Articles
The Articles of Association is a document which contains rules, regulations and bye-laws regarding the internal management of the company. Articles must not violate any provision of the memorandum or any provision of the Companies Act. The rules laid down in the articles must always be read subject to the rules contained in the memorandum.
Lord Cairns in Ashbury Railway Carriage & Iron Co. v. riche, described the relationship between the memorandum and the articles in this language : “The memorandum is as it were, the area beyond which the actions of the company cannot go ; inside the area, the’ share holders may make such regulations for their own government as they think fit.
l. The Articles are subordinate to Memorandum.
2. The Memorandum must be read in conjunction with the Articles.
3. The terms of the Memorandum cannot be modified or controlled by the Articles.
The Memo and Articles are public documents, which may be inspected by anybody at the office o t e Registrar of Companies. Any person dealing with a company is presumed to have constructive notice of their contents. The members of a company are entitled to have copies of the memo and the articles, on payment of a small fee.
The distinction between the memorandum and the articles of association can be sunned up as follows :
1. The memorandum is the fundamental charter of the company determining its constitution and objectives ; the articles are rules regarding internal management.
2. Any rule in the articles contrary to the memorandum is invalid.
3. Articles can be altered easily, the memorandum can be altered only after the adoption of certain formalities.
4. Certain clauses of memo cannot be altered without the sanction of the Central Government and of the Court e.g., the object clause and the liability clause. Other clauses can be altered easily e.g., the name clause. Articles can be altered by passing a special resolution. The approval of the Central Government is required in special cases e.g., the remuneration of directors of public companies. For change of articles, Court sanction is generally not required.
5. The memo defines the powers of the company and the relationship between tile company and the members and-also non members, Articles define and regulate the relationship between the company and the members and the relationship between the members inter se.
6. Acts beyond the powers of memo (ultra vires) are void Such an act cannot be ratified by the members even, by a unanimous resolution. But acts done by a company beyond the articles can be ratified by the shareholders provided they are within (intra vires) the powers of Memo.
7. If an act is within the powers given by the memo (inrtra vires the memo) but contrary to some provision of the articles (ultra vires the articles) the members can change the articles and ratify the act.
THE FORM AND CONTENTS OF THE MEMORANDUM
Section 13 : The Act lays down that the memorandum of a association of every company shall contain the following particulars :
1. Name Clause
The name of the company with the word “limited” at the end of the name of a public company and the words “private Limited” at the end of the name of a private company.
2. Situation Clause
The name of the State in which the registered office of the is to be situated.
3. Objects Clause
The objects of the company. The Companies (Amendment) Art, 1956, provides that in the case of a company formed after the said amending Act, the Memo must state separately
(i) the main objects and objects incidental and ancillary to the main objects, and
(ii) (ii) other objects not included in (i).
4.Area of Operation Clause
Except in the case of trading corporations, the State 4 States Iii whose territories the objects extend.
the nature of the liability of the members, i.e., whether limited by shares or by guarantee or unlimited.
In the case of a company having share capital-unless the company is an unlimited company, the memorandum shall state the amount of share capital and the division thereof into shares of a fixed amount.
7. The Association and Subscription Clause
No subscriber to the memorandum shall take less than one share ; and each subscriber to the memorandum shall write opposite to his name the number of shares he takes.
Section 14 : The Act lays down that the memorandum shall be according to the prescribed form or as near to it as circumstances admit. The memo must be drafted, as described, to suit the needs of the company concerned, but the particulars mentioned above must be included, and, there must be nothing contrary to the provisions of the Act.
In Schedule 1 to the Act four model forms are given. They relate to the following four types of companies :
Table B. Company Limited by Shares.
“ C “ Guarantee and not having a share-capital.
“ D “ Guarantee and having a share-capital
“ E Unlimited Company.
Section 1 5: The Act provides that the memorandum must be printed ; divided into paragraphs numbered consecutively; and signed by each subscribed (who shall add address, description and occupation, if any). The signature of the subscriber shall be attested by at least one witness who shall likewise add his address, description and occupation, if any. In the case of public companies the Memo must be signed by at least 7 persons ; in the case of private companies by at least 2 persons.
RULES REGARDING THE NAME OF COMPANY
A company cannot adopt a name by which another company is registered. If by inadvertence, mistake or otherwise,. a name is selected which is the same as that of an existing company or closely resembles it, the name must be changed.
If the name of company closely resembles the name of a previous company, the public may be misled and may be defrauded. In such a case the Court will direct the change of the name of the company. Tussaud & Sons v. Tussaud.
A company cannot use a name which is considered undesirable by the Central Government (Sec. 20). Under the Emblems and Names (Prevention oi Improper Use) Act of 1950 the Government has power to declare what names and emblems are not to be used by companies and in trade marks and patents. The use of the following has been prohibited under the above Act–name and emblems of the U.N.O and W.H.O. ; the Indian National Flag ; the official seal and emblems of the Central Government and the State Governments ; name and pictorial representations of Mahatma Gandhi and the Prime Minister of India ; the `Interpol’. The Central Government can declare any other name as undesirable and prohibit the use of the same by n company. . .
Subject to the above rules, a company can adopt any name it likes the name and the address of the registered office of every company must be painted or affixed on the outside of its business premises in a conspicuous position and in letters easily legible w (me or more of tile language used in the locality (Sec. 147). The words “Limited” and “Private Limited” are parts of the names of public and private companies respectively and must be added at the end of the name of the company.
The name and the address of the registered office of the company must be engraved in legible characters on the company’s seal and mentioned in all business letters, bill heads, notices and other documents (Sec. 147). But they need not be mentioned in advertisements. Failure to publish the name and the address of the registered office in the manner laid down in Section 147, is punishable with a fine.(procedure for changing the name-See below under “Alteration of Memorandum”.]
Non-Profit Association See pp. 544-545.
RULES REGARDING THE REGISTERED OFFICE
A company shall from the day on which it commence business or within 30 days after incorporation, whichever is earlier, have u registered office to which all communications and notice may be addressed. Notice of the situation of the registered office, and of every change therein, shall be given within 30 days after the date of the incorporation of. the company or after the date of the change, as the case may be, to the Registrar who shall record the same.-Sec. 146.
If the situation of the registered office is changed from one place to another within the same town or village, no amendment of the Memo is required but notice must be given to the Registrar.
If the registered office is changed from one city, town, or village to another (within the same State) a special resolution must be passed, and notice must be given to the Registrar. Failure to comply with the above rules may be punished with ;fine which may extend to Rs. 50 for every day during which the offence continues.
To change the registered office from one State to another, it is necessary to amend the Memorandum. (See below, under “Alteration of Memorandum”.
FORM AND CONTENTS OF THE ARTICLES
The Articles of Association contain rules, regulations and bye-laws regarding the internal management of companies. An unlimited company, a company limited by guarantee and a private company limited by shares must file their articles of association at the time of registration of the company.-Sec. 26.
A public company may or may not file articles. If it does not, the regulations contained in Table A will apply to it. (Table A is a set of model articles printed in Schedule [ to the Companies Act).
The articles of a private company must contain tile restrictive features peculiar to private companies (viz., limitation of the number of members to 50 ; restrictions on the transfer of shares ;prohibition of invitation to the public for the purchase of shares and debentures). -Sec. 27 (3).
In the case of a company limited by guarantee, the articles shall state the number of members with which the company is to be registered.-Sec. 27(2).
In the case of an unlimited company, the articles shall state the number of members. with which the company is to be registered and, if the company has a share capital, the amount of such share capital.-Sec. 27(1).
THE MEMORANDUM AND ARTICLES OF ASSOCIATION
Form of Articles
Model forms of articles, for use in the case of companies not limited by shares, are given in Schedule 1 to the Act.The Articles shall
(a) be printed ;
(b) be divided into paragraphs numbered consecutively ; and
(c) be signed by each subscriber of the memorandum of association (who shall add his address, description and occupation, if any), in the presence of at least one witness who shall attest the -signature and shall likewise add his address, description and occupation, if any. Sec. 30.
Contents of Articles
Articles usually contain provisions in respect of the following matters :
(1) share capital, rights of shareholders, payment of commissions, share certificates i
(2) lien on shares ;
(3) calls on shares ;
(4) transfer of shares ;
(5) transmission of shares ;
(6) forfeiture of shares ;
(7) conversion of shares into stock ;
(8) share warrants;
(9) alteration, of capital ;
(10) general meetings and voting rights of members ;
(11) appointment and remuneration of directors, board of directors, managers and seccretary ;
(12) dividends and reserves ;
(13) accounts and audit and borrowing powers ;
(14) capitalization of profits ; and
(I5) winding up.
the Articles of Association are commercial documents and they ,Ix0uld not be interpreted very strictly. Re Hartly bairdLtdArticles should be construed so as to give-the company a reasonable business efficacy and make them workable. holrnes v Keyes. 2
Companies which must possess their own Articles. The following companies must have their own articles, namely, -
(a) unlimited companies,
(b) companies limited by guarantee,
© private companies limited by shares.
ALTERATION OF THE MEMORANDUM
The Memorandum of Association of a company can be altered by following the procedure laid down in the Companies W t. The procedure is different for different clauses of the memo.
For the purpose of alteration, the provisions of the memo can be divided into two classes :
(i) provisions the inclusion of which is made compulsory by the Act (e.g., the name, objects, place of registered office etc.)
(ii) other provisions which the organizers of the -company have thought it desirable to include.
Provisions coming under the second category can be altered in the same way as provisions of the Articles of Association, (i.e., by special resolution) unless otherwise provided in the Act. Provisions coming under the first category are called "Conditions contained in the Memorandum". The "conditions" can be altered in the manner stated below :
1. Change of name
A company may change its name by special resolution provided the Company Law Board approves of the change.-Sec. 21. No such approval is necessary in cases of addition or deletion of the word "Private", when a Public Company is converted into a private Company and vice-versa.
If by inadvertence a company is registered with a name which is identical with or closely resembles the name of an existing company the name may be changed by an ordinary resolution, with the previous approval of the Company Law Board. If the company takes no steps in the matter, the Board may direct it to change its name within a prescribed period.-Sec. 22.
When the name is validly changed, the Registrar shall enter the new name in the Register of companies and shall issue a fresh Certificate of Incorporation. The Registrar shall also make the necessary alteration in the memorandum of association of the company.-Sec. 23(1) and (2).
Change of name does not affect the rights and obligations of the company and pending suits by or against the company.Sec. 23(3).
2. Change of Object
(Sections 17-19). The object clause of the memo can be changed for the purpose of enabling the company :
(a) to carry on its business more economically or more efficiently ;
(b) to attain its main purpose by new or improved means ;
(c) to enlarge or change the local area of its operation ;
(d) to carry on some business which under existing circumstances may conveniently or advantageously be combined with the objects specified in the memorandum ;
(e) to restrict or abandon any of the objects specified in the memorandum ;
(f ) to sell or dispose of the whole, or any part of the undertaking, of the company ; or
(g) to amalgamate with any other company or body of persons.
The following procedure must be adopted for changing the object clause :
(i) A special resolution must be passed.
(ii) A petition must be filed to the Company Law Board for confirmation of the change.
(iii) Notice must be given to all persons whose interests will be affected by the change (unless the Board otherwise directs).
(iv) The consent of the creditors of the Company must be obtained or other claims paid off or secured.
(v) Notice must be given to Registrar of Companies, so that he can appear before the Board and state his objections and suggestions, if any.
(vi) After the Board has confirmed the alterations, a certified copy of the Board's Order, together with a printed copy of the Memo as altered shall be filed with the Registrar within 3 months of the date of the order.
The certificate of the Registrar of Companies is conclusive evidence of the alteration and its validity.-Sec. 18.
When the alteration is given effect to. The alteration takes effect after it is registered. If no registration is made within 3 months (or such further time as may be allowed by the Board) the alteration and the entire proceedings connected therewith become void. The Board, may, on sufficient cause shown, revive the order of alteration on an application made within one month.
Powers of the Company Law Board
Formerly the Court dealt with all cases regarding sections 17, 18 and 19 of the Companies Act. After the amendment of this Act in 1974, they are decided by the Company Law Board.
The Board has a wide discretion in allowing changes in the objects clause. The Board ~must take into consideration the rights and interests of the members of the Company and those of its creditors. The Board may allow the change partially or wholly, or may disallow the change. The Board may adjourn the proceedings in order that the Company may purchase the interests of the dissentient members. Orders may be passed for facilitating such arrangements but no part of the capital of the Company can be spent in any such purchase).
In several Court' cases it has been held that if the proposed changes will radically alter the original objects of the Company, the change will not be allowed. The proposed changes must be for any of the 7 purposes, (a) to (g), mentioned above.
(i) The main business of a Company was mining. It applied for permission to alter the object clause of the memo so as to enable it to start hotels and sell goods on hire-purchase. The alteration was not granted. In re Bharat Mining Corporation Ltd'
(ii) A company was carrying on business in jute and it had power to undertake such business under the objects clause of its memo. In a meeting, the members unanimously passed a special resolution to :start business in rubber. The alteration of the object clause was not . granted. In re Bhutoria Bros. (P) Ltd.
(iii) An incorporated Cyclists Club wanted to alter its memorandum so that motorists can become members. The Court refused to allow the alteration because it will change its objects completely. Re Cyclists Touring Club Ltd.'
(iv) But the Court may allow a company to start a completely new kind of business if this can be conveniently or advantageously carried on with its old business, and in general, the company is the best • judge to decide whether it would be able to combine new business conveniently. Re Paremt tyre Co.
3. Change in the location of the registered office from one State to another
The procedure to be adopted is the same as in the case of alteration of object. The alteration must be registered with the Registrar of Companies of the 'State in which the registered office of the Company was originally situated and also the Registrar of the 'State to which the office is being transferred. The records of the Company will be transferred to the tatter place.
THE MEMORANDUM AND ARTICLES OF ASSOCIATION
(i) The transfer of a registered office of a company outside Orissa was opposed by Orissa Government on the ground of loss of revenue and reduction of employment opportunities. It was argued that in a federal constitution every state has the right to protect its revenue. The Court agreed and the transfer was not allowed. Orient Paper Mills Ltd .V The State.
(ii) The transfer of a registered office by itself does not affect, or appreciably affect, the scope of employment of the people of the State. It was therefore useless to refuse to confirm the alteration on the around of loss of Prospect of employment in the State. The High Court sanctioned the resolution allowing transfer of the company's registered office from Calcutta to Bombay. Rank Film Distributors v. The Registrar of Companies
4. Alteration of the Capital Clause
Alteration of the capital clause can be done in the following methods
(i) Alteration, including Increase of Capital
(ii) Reduction of Capital
(iii) Variation of Shareholders' Rights and
(iv) Creation of Reserve Capital. These topics are discussed below.
ALTERATION OF SHARE CAPITAL
Section 94 of the Act provides that a company may, if so authorised by the articles, alter its share capital in any one of the following ways :
(a) increase its share capital by such amount as it thinks expedient by issuing new shares ;
(b) consolidate and divide. all or any of its share capital into shares of larger amount than its existing shares ;
(c) convert all or any of its fully paid up shares, into stock, and reconvert stock into fully paid up shares of any denomination ;
(d) sub-divide its shares or any of them, into shares of smaller amount than is fixed by the memorandum, so however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived ;
(e) cancel shares which, at the date of the passing resolution in that behalf, have not been taken or agree to be taken by any person, and diminish the amount of its share capital by the amount of -the shares so cancelled.
Alterations coming within aforesaid categories, can be made by a company by resolution passed in a general meeting. Confirmation by the court is not necessary. Cancellation of shares under this section [item (e) above] is not deemed to be a reduction of share capital. Notice of any alteration made under this Section must be given to the Registrar within 30 days of the alteration. Increase of Capital
Increase of Capital can be done by the issues of new shares, within the limits of the Authorized Capital as registered and as stated in the memo and articles. Such shares are called Rights Shares. For the issue of such shares a special procedure must be adopted. (See ch. 4)
The Company can increase its Registered Share Capital. The procedure. of increase is by passing an ordinary resolution. The consent of the ‘Central Government is necessary in certain special cases. Notice of the alteration must be given to the Registrar within 30 days of the date of resolution.
Case Law :
It is not true to say, as a statement of taw, that Directors have no power to issue shares at par, if their market price is above par. Such discretionary powers in company administration are in the nature of fiduciary powers and must, for that reason, be exercised in good faith. Mala fides vitiate the exercise of such discretion. Needle Industries (India) Ltd., and others v. .needle Industries Newey (India) Holdings Ltd., and others.
REDUCTION OF SHARE CAPITAL
Reduction of share-capital may be made for any one or more of the following purposes :
(a) to extinguish or reduce the liability of the shareholders as regards the uncalled capital ;
(b) to cancel any paid up share capital which is lost or is. unrepresented by available assets ;
(c) to pay off any paid up share capital which is in excess of the wants of the company ; and
(d) by any other method approved by the court.
Procedure for reducing Share Capital
A company can reduce its share capital, provided the following requirements are complied with.-Sections 100-105.
1. Reduction of capital must be authorized by the articles. If the existing articles do not give that power, they may be amended.
2. A special resolution must be passed. The resolution for reduction must be just and equitable.
3. Sanction of the court must be obtained.
The Court, may, before giving sanction to the reduction, direct the issue of notices to all creditors of the company whose claims are of such a nature that they are provable upon winding up. The court is to settle the list of creditors for this purpose. After hearing the objections of the creditors, if any, the court may direct that before reduction of capital is allowed, the claims of the creditors must be either paid tip or secured. The Court protects the interest of the creditors and of the minority groups of shareholders.
The court may order that for a specified period after the reduction, the company shall add the words “and reduced” at the end of its name.
The court may also order the publication of the reasons which led the company to reduce its capital, so that the public may be informed.
4. A certified copy of the Court’s order and a minute approved by the Court showing what has been done, must be filed with the Registrar for registration. The reduction takes effect from the date of registration.
After reduction, the liability of the shareholders becomes as ordered by the court and as recorded in the minute of reduction. But if there is a creditor who was ignorant of the proceedings for reduction and if the company is unable to pay his claim, all shareholders whose liabilities were reduced will be bound to contribute towards the claim of the creditor to the same extent as they would have had to, had there been no reduction.
Officers of the company, who conceal the name of any creditor entitled to object, are punishable with imprisonment up to one year or with fine.
VARIATION OF SHAREHOLDERS’ RIGHTS
The rights given, by the memorandum and the articles to the different classes of shareholders may be varied if the following requirements are fulfilled.-Sections 106, 107.
1. There must be provision in the memorandum or the articles for such variation, or (in the absence of any such provision in the memorandum or articles) if such variation is not prohibited by the terms of issue of the shares of that class.
2. The variation must be agreed to by the holders of any specified proportion, not less than 314th, of the issued shares of that class. Specified means specified in the memo or the articles. The consent may be given by a resolution passed in a meeting of the holders of that class of shareholders or otherwise. The variation may be challenged in court by an application made by at least 10% of the aggregate number of holders of that class of shares. They must be persons who did not vote for the resolution for variation. The application must be made within 21 days of the resolution or consent. If the court is of opinion that the variation is of such a nature as would unfairly prejudice the rights of that class of shareholders, the court may disallow the variation. The decision of the court is final. The order of the court must be communicated to the Registrar by the company, within 30 days of receiving it.
A limited company may by special resolution determine that any portion of its share capital which has not been called up, shall not be called up, except in the event of the company being would up.–Sec. 99.
The uncalled capital, .freed from call in the manner aforesaid, is called the Reserve Capital of the company. The company cannot charge the reserve capital for raising a loan, nor can it be dealt with in any way except on liquidation.
ALTERATION OF THE ARTICLES OF ASSOCIATION
Section 31 of the Act gives to all Companies a statutory right to alter articles and this right cannot be taken away by any provision in the existing articles-or the memorandum. A provision. prohibiting change of articles is not binding on the members.
Although alteration of articles is permitted, there are certain restrictions on the nature and extent of the alterations that can he made.
l. Articles can be altered by special resolution only. If the articles of the company prescribed a different procedure, e.g., an ordinary resolution, it will not be followed. Confirmation by the Court is not necessary.
2. No change is permitted which will violate the provisions of the Companies Act.
3. No change is permitted which is contrary to the conditions contained in the Memorandum of Association of the Company.
4. The alterations must not ‘contain anything illegal.
5. The liability of the members or any class of members, cannot be increased without their consent.
Example : a member cannot, by altering articles, be made to take more shares or to pay more for the shares already taken, unless he agrees to do so in writing either before or after the alteration. But where. the company is a club or association, the articles may be validity altered to provide for subscription or charges at a higher rate. sec 38.
6. Alteration of certain provisions of the articles required the previous consent of the Central Government (viz., alteration articles regarding the number of directors and their remuneration ; etc).
7. An alteration of articles which has the effect of converting v public company into a private company shall not have effect ‘ unless the alteration is approved by the Central Government.
8. The alteration must not constitute a fraud on the minority. the majority (or the ruling group) must not by altering the articles affect the interests of the minority. The Courts have been given extensive powers to prevent such misuse of power
9. But any alteration made bona fide, in the interests of the company as a whole, is valid and binding even though the private interests of some members may be affected.Example : In a private limited company, the majority of shares were held by the directors. The articles were altered and the directors were given powers to compel members carrying on business in competition with the company to sell their shares (as full value) to a nominee of the directors. Held, the alteration was valid. Sidebottom v. Kershaw Leese & Co. Ltd.
10. The Court cannot order rectification of articles, even on , the ground of mistake. But the court can declare particular clauses to be ultra vires Scott. v. Frank F. Scott Ltd.
11. Articles may be altered with retrospective effect. The company was allowed to insert a lien clause conferring upon the company a lien on the shares of members for debts incurred
before and after the insertion of this clause. Held, that the company had power to insert this clause which was valid and effective. Allen v. Gold Reefs of West Africa Ltd.
12. The alteration must not lead a breach of contract with the outsiders.
THE LEGAL EFFECTS OF THE MEMORANDUM
The Contractual Powers of a Company
A Company or a Corporation is an artificial person created by law. It is a legal person capable of suing and of being sued. But the contractual powers of a company are limited in two ways :
(i) natural possibility and
(ii) legal possibility.
(i) Natural Possibility
The fact that a company is an artificial person leads to the result that a company must always enter into contract through agents,
(ii) Legal Possibility
A joint stock company cannot enter into any contract the object of which goes beyond the memorandum of association of the company. A statutory corporation cannot enter into any contract which is beyond the scope of its powers as laid down in the statute by which it was created
Forms of Contracts and Deeds of a Company
The Doctrine of Ultra Vires
The Memorandum of Association determines the constitution and the powers of ‘the Company. It was observed by Lord Selbourne that the memorandum is the Company’s “fundamental and unalterable law”. ‘A Company is incorporated only for the objects and purposes expressed in the memorandum. Any act purported to be done by the Company which is beyond the scope of the functions of the Company as laid down in the memorandum is ultra vires i.e., beyond the powers of the Company, and of no effect.
In Ashbury Railway Carria9e & Iron Co. v. Riche. l a company was constituted for the purpose of manufacturing railway wagons. The company purchased the right to, run a railway i n Belgium. It was held that the purchase was invalid. In this case it was observed that the Memorandum of Association has a twofold effect an affirmative effect stating what the Company can do and a negative effect indicating what the Company cannot do. “It (the Memo) states affirmatively the ambit and extent of vitality and power which by law are given to the corporation, and it states, if it is necessary so to state, negatively that nothing shall be done beyond that ambit, and that no attempt shall be made to use the corporation life for any other purpose than that which is so specified.” It was also observed in the judgment that, “The directors and shareholders, even if they are unanimous, cannot do things which are not authorised by the memorandum.”
The important rules concerning the legal effects of the memorandum can be summed up as follows :
1. The terms of the memorandum constitute a binding contract between the Company and the members.Sec 36.
2.All acts done by the directors or members beyond the powers given in the memo, are ultra vires and not binding on the Company.
3. The members cannot ratify ultra vires acts, even by an unanimous resolution.
4. It an act is within the powers given by the memo (intra vires the memo) but contrary to some provision of the articles (ultra vires the articles) the, members can change the articles and ratify the act.
5. The object clause in the memorandum is construed like other documents and the Company may do anything which is fairly incidental to and consequential upon the powers specified. Attorney-General v. Great Eastern Rly.
The following acts have been held to be valid even though i there were no provisions about them ii, the Memo or Articles. Grants to an University for research, Evans v. Brunner, Mond & Co. Lid’ ; payment to widows of ex-employees, Handerson
v. Bank of Australia.2 Ex-gratia payments to workers for ~ incentives, Hempson v. Price’s Patent Co
The Board of directors decided to pay a pension to the widow of the former managing directors of the company. Held, such ~ a payment is not for the benefit of the company, nor can it be ;called incidental to the business of the company. The payment is ultra vires. Re Lee Behren & Co. Ltd.
6. If a director makes an ultra vires payment (e.g., paying interest out of capital) he can be compelled to refund the money to the Company. .
7. Contracts which are ultra vires the Company are not binding on the Company. But -the aggrieved party can be given relief in certain cases.
(i) If a Company takes an ultra vires loan and uses it to pay off a creditor, the second creditor is substituted in the position of the first creditor and can recover the money. In re Wrexham Rly Co.
(ii) If goods are obtained by a Company by an ultra vires contract and the goods can be traced in the hands of the Company, the Company can be ordered to return it. Sinclair v. Brortgham.6
(iii) If money is lent by a Company not having power to lend it, the money can be recovered because the debtor will be estopped from taking the plea that the company laid no power to lend. Cotman v. Brougham.
8. Directors entering into ultra vires contracts may be liable to the third party for breach of warranty of authority.
9. The memorandum is a public document. Every person dealing with a Company is presumed to know the contents of the memo.
LEGAL EFFECT OF THE ARTICLES
Section 36 of the Act provides that, “subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent
Its if they respectively had been signed by the company and by each member, and contained covenants on its and his part to
observe all the provisions of the memorandum and of the articles.”
Thus the articles constitute a binding contract between the company and its members. Beattie v Beattie. Ltd. l ; Hanuman Prasad v. Hiralal
A company is bound to the members in the same manner as the members are bound to the company. The Articles constitute a contract between members. But the Articles do not constitute any binding contract as between the company and an outsider.
The provisions of the articles can be enforced by suit by the company and the members.But if the articles are violated by a member, a suit for the enforcement of the articles can be brought only by the Company and not by other-members, unless the person against whom relief is, sought, controls the majority of shares and will not allow a milt to be brought in the name of the company. Burland v. earle. The Dhakeswari Cotton Mills Ltd. v. Nilkamal.
The articles come within the definition of public documents. All persons dealing with the company are presumed to know the provisions of the articles. So if anything is done contrary to or beyond the provisions of the articles, the company is not bound. examples :
(i) The articles of a company provided that the company will have a first charge on the shares for debts due to the company from the members. A member, owing money to the company, borrowed money from a bank on the security of the shares. Held, the company’s claim would have priority because of the provision in the articles, Bradford Banking Company v. Briggs.
(ii) The articles of a company provided. that if a member became insolvent, his shares were to be sold to a nominee of the company at a fixed price. Held the provision was binding and the trustee in bankruptcy cannot claim the share. Borland’s Trustee v. Steel Bros.
(iii) By a special resolution the Company reduced the remuneration of Each director, with retrospective effect from the end of the preceding year. Held, the company can vary the terms of the service as to, the ,further. but it cannot vary the terms adversely with retrospective effect.. sawby v. Port Darwin Gold Co.
DOCTRINE OF INDOOR MANAGEMENT
When the articles of association of a company prescribed a particular procedure for doing a thin-, the duty of carrying out the provisions lies on tile person in charge of the management of the company. Outsiders are entitled to assume that the rules have been complied with. this is known as the Doctrine of Indoor Management.
Example :The articles of a company provided that the directors can give a bond if authorised by a resolution of the company. The directors gave a bond to T although no resolution was passed. Held, T was entitled to assume that the resolution was passed (because it was a matter of internal procedure) and the company was bound by the bond. Royal British Dank v, Turquand.
The Doctrine of indoor management does not apply in certain cases :
(a) Void Acts
Where the act is void ab initio, the company is not bound, e.g., forgery.
(i) An act ultra vires the memo or articles cannot bind a company.
(ii) A Share certificate forged by the secretary of the company and issued under the seal of the company cannot confer any right on the holder thereof. Ruhen v. Great Fingall Consolidated.
(b) Knowledge of irregularity
Where the person dealing with the company has notice, actual or constructive, that the prescribed procedure has not been complied with the company is not bound.
X company lends money to a company on a mortgage of its asset. The procedure laid down in the articles for such transaction was not complied with. The directors of the two companies were the same. Here it may be presumed that the lender had notice of the irregularity. Hence the mortgage is not binding. Pratt Ltd. v. Sassoon c4c Co. Ltd. Morris v. Kanssen.
(c) Lack of authority
If an agent of a company makes a contract with a third party and if the act of the agent falls outside the ordinary authority of the agent, the company is not bound. Houghton & Co. v. Nothard, Lowe and Wills.
example :A branch manager of a company drew bills of exchange and also endorsed bills on behalf of the company, although they had no authority for these acts from the company. Held, the company was not bound. Kreditbank Cassel v. Schenkers.