The promoter has to file the following documents with the required fees to the Registrar of Companies of the State in which the registered office of the company is to be situated:
1. “Memorandum of Association” which lays down the scope of activities of the company.
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2. “Articles of Association” which provides for the rules and regulations governing the internal management of the company. However, a public company limited by shares need not prepare and file a copy of the Articles in case it agrees to adopt ‘Table A’ (a model set of articles given in Schedule I to the Companies Act). An endorsement to that effect may be made on the company’s memorandum. But a private limited company, a public company limited by guarantee and an unlimited company must file their own articles as they cannot adopt the provisions of Table A.
3. The agreement, if any which the company proposes to enter into any individual for appointment as its managing or whole-time director or manager.
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4. A list of persons who have consented to become directors of the company. (Form No. 32) If a separate list of directors is not filed, the subscribers to the memorandum will be deemed to be the first directors of the company.
5. If directors are appointed by the Articles or named in the prospectus, their written consent to act as directors and written undertaking to take up and pay for the qualification shares (if any). (Form No. 29).
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Requirements as given in points (3) and (4) above do not apply to private companies.
6. Notice of the address of the registered office. This may also be given within 30 days after the incorporation or on the day from which the company commences its business, whichever is earlier (Form No. 10).
7. A statutory declaration (Form No. 1) by any of the following persons that all the requirements of the law for registration have been duly complied with:
(a) An advocate of the Supreme Court or a High Court.
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(b) An attorney or pleader entitled to appear before a High Court.
(c) A chartered accountant or a secretary, in whole time practice in India and who is engaged in the formation of the company.
(d) By any person who is named in the Articles as a director, manager or secretary of the company.
Obtaining Certificate of Incorporation:
On receipt of these documents and the requisite fees, the Registrar will examine them and satisfy himself regarding the following:
(i) The memorandum has been signed by the requisite number of persons.
(ii) The company is proposed to be formed for a lawful purpose.
(iii) Both memorandum and articles do not go against the provisions of the Companies Act.
On being satisfied, the Registrar will register the memorandum, articles and other documents and issue under his hand a certificate termed as “Certificate of Incorporation”.
The certificate contains the name of the company, the date of its issue and the signature of the Registrar with his seal. The date mentioned in the certificate will be taken as the date of birth of the company.
Consequences of Certificate of Incorporation:
“From the date of incorporation mentioned in the certificate of incorporation, such of the subscribers of the Memorandum and other persons as may from time to time be the members of the company, shall be a body corporate by the name contained in the Memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in the Act.”
Thus, the consequences are:
(1) The certificate of incorporation brings the company into existence from the date mentioned in the certificate.
(2) It is conclusive evidence of the fact that the company has been duly incorporated.
(3) It grants legal personality, corporate existence and perpetual succession to the company.
(4) The subscribers to the Memorandum together with such other persons, as may from time to time become members of the company, become a body corporate with a distinct entity from such members having a perpetual succession with a common seal and with the liability of the members limited to the amount for the time being unpaid on the shares held by them.
(5) The Memorandum and Articles of Association become binding upon the members and the company as if they have been signed by the company and by each members.
(6) A private company can commence business immediately after obtaining the certificate of incorporation.
(7) A public company can proceed to raise capital and then to obtain the certificate of commencement of business to start its business.