Q: Describe Memorandum of Association and Articles of association ?
Ans: Memorandum of Association is mandatory for every Companies whereas Articles of Association is mandatory for private companies only.
The Memorandum of Association refers to a fundamental public charter that encloses particulars needed at the time of incorporation.
Presently, Memorandum of Association acts as a mandatory requirement for incorporation of any company in India. At the time of the company’s incorporation, it should to be registered with the Registrar of Companies. The memorandum of association encloses the powers, objects, as well as scope of the company, beyond which an organization is not allowed to operate, i.e. it imposes a limitation on the range of undertakings of the company.
Memorandum of association is a public document according to Section 399 of the Companies Act, 2013. Hence, any person who enters into a contract with the company is expected to have knowledge of the MOA. It contains details about the powers and rights of the company.
Section 2(56) of the Companies Act, 2013 defines Memorandum of Association. It states that a “memorandum” means two things:
Memorandum of Association as originally framed;
Memorandum as originally framed refers to the memorandum as it was during the incorporation of the company.
Memorandum as altered from time to time;
This means that all the alterations that are made in the memorandum from time to time will also be a part of Memorandum of Association.
An article of Association is technically considered a secondary document, which sets out the rules as well as the norms made by the company for its management and daily activities. Additionally, the Articles of Association encloses the rights, obligations, powers, as well as duties of members of the company. It also covers details which is related to the audits and accounts of the company.
According to section 2(5), "articles" means the articles of association of a company as originally framed or as altered from time to time or applied in pursuance of any previous company law or of this Act.
Section 5(3) which implies that certain provisions within the Articles of Association will not be alterable by merely passing a special resolution, and will require a much more lengthy and elaborate process.
Keywords used:
The literal definition of the word “entrench” means to establish an attitude, habit, or belief so firmly that bringing about a change is unlikely.
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