GOVERNMENT OF INDIA

Ministry of Corporate Affairs

NOTICE INVITING COMMENTS ON THE DRAFT COMPANIES (Incorporation) Second  AMENDMENT RULES 2016

Dated the 17th February, 2016

1. The draft Companies COMPANIES (Incorporation) Second AMENDMENT RULES 2016 i.e. conversion of unlimited liability company into limited liability company has been placed on the Ministry’s website at www.mca.gov.in. It has been decided to invite suggestions/comments on the above draft.

2. Suggestions/comments on above mentioned draft along with justification in brief may be sent latest by 02.03.2016 through email at [email protected]   It is requested that the name, Telephone number and address of the sender should be indicated clearly at the time of sending suggestions/comments.

Name, Address, Contact No. of Stake holder __________________

SL.No	Rule No.or Form No.	Suggestion	Justification

 

To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-Section (i)]

Government of India

Ministry of Corporate Affairs

NOTIFICATION

New Delhi, February, 2016

G.S.R..-In exercise of the powers conferred by sub-sections (1), (2) and (3) of section 18 read with sub-sections (1) and (2) of Section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Incorporation) Rules, 2014, namely:-

1. (1) These rules may be called the Companies (Incorporation) Second Amendment Rules, 2016.

(2) They shall come into force from the date of their publication in the Official Gazette.

2. In the Companies (Incorporation) Rules, 2014,

After existing Rule 36, the following Rules shall be inserted.-

37. Conversion of unlimited liability company into limited liability company:-

For effecting the conversion of an unlimited liability company into limited liability company, the company shall pass a special resolution in a general meeting and thereafter, an application shall be filed in Form INC-27 in the manner hereinafter provided.

(2) The Company shall within seven days from the date of passing of the special resolution in a general meeting, publish a notice of such proposed conversion in newspapers (one in English and one in vernacular language) in the district in which the registered office of the company is situate and shall also  place the same on the website of the Company, if any, indicating clearly the proposal of conversion of the company into limited liability company, and seeking objections if any from the persons interested in its affairs, to such conversion and cause a copy of such notice to be dispatched to its creditors and debentures holders by registered post or electronic mode or through courier with proof of dispatch. The notice shall also state that the objections, if any, may be intimated to the Registrar and to the company within twenty-one days of the date of publication of the notice, duly indicating nature of interest and grounds of opposition.

(3) The Company shall within sixty days of passing of the special resolution  file an application as prescribed in sub rule (1) for its conversion into Limited Liability Company alongwith the fees as provided in the Companies (Registration offices and Fees) Rules, 2014, by attaching the following documents, namely:-

a. Notice of the general meeting along with explanatory statement;

b.  Copy of the resolution passed in the general meeting;

c. Copy of the newspaper publication;

d. A copy of altered Memorandum of Association as well as Articles of Association duly certified by any one of the directors duly authorised in this behalf.

e. Declaration from all the directors of the Company that such conversion shall not affect any debts, liabilities, obligations or contracts incurred or entered into by or on behalf of the Company before conversion (except to the extent that the liability of the members shall become limited).

f. A complete list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than thirty days, setting forth the following details, namely:-

(i) the names and address of every creditor and debenture holder of the Company;

(ii) the nature and respective amounts due to them in respect of debts, claims or liabilities:

(iii) declaration by a director of the company that notice as  required in sub-rule (2) has been dispatched to all creditors and debenture holders with proof of dispatch.

g. A declaration signed by not less than two directors of the company, one of whom shall be a managing director where there is one, to the effect that they have made a full enquiry into the affairs of the Company and, having done so, have formed an opinion that the list of creditors is correct, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the Company to their knowledge.

h. A declaration of solvency signed by at least two directors of the company, one of whom shall be the managing director where there in one to the effect that the Board of Directors of the company have made a full inquiry into the affairs of the company, as a result of which they have formed an opinion that it is capable of meeting its liabilities and will not be rendered insolvent within a period of one year from the date of declaration, through a resolution, passed in a duly convened meeting.

i. The company should also obtain a certificate from the Statutory Auditors that the company is solvent and that it is a going concern as on the date of passing of resolution by the Board certifying solvency as per (h) above.

j. NOC from sectoral regulator, where necessary.

k. NOCs from all secured creditors, if any.

(4) Declaration from all the directors of the Company that no complaints are pending against the company from the members or investors.

(5) Where no objection has been received from any persons, who have been duly served with notice, the application shall be decided by the Registrar on merits.  Where an objection has been received, the company shall either obtain the objector’s consent to the conversion or his debt or claim has been discharged or determined or has been secured as the case may be, to the satisfaction of the Registrar.

(6) The certificate of incorporation consequent to conversion of unlimited liability company to the limited liability company in Form INC-11A shall be issued to the company upon grant of approval for conversion.

(7) Conditions to be complied with, subsequent to conversion:-

(i) Company shall not change its name for a period of one year from the date of such conversion.

(ii)  The company shall not declare or distribute any dividend without satisfying past debts, liabilities, obligations or contracts incurred or entered into before conversion.

(8) An Unlimited Liability Company shall not be eligible for conversion into Limited Liability Company in case ;-

(a) Its networth is negative, or

(b)  It has incurred losses continuously for the past three financial years, or

(c) Scrutiny or inquiry or investigation is pending and where it is completed and prosecution is pending against the company or its directors under the provisions of the Companies Act, 1956/2013 as consequence thereof, or

(d) An application is pending under the provisions of the Companies Act 1956/2013 for striking off its name, or

(e)  The company has defaulted in filing Annual Returns and or financial statements under the provisions of the Companies Act.

(ii) For the existing form INC-27 the following form INC-27 shall be substituted.

(iii) After the existing Form INC-11, the form no. INC-11A shall be inserted

Form No. INC-11A

Certificate of Incorporation pursuant to conversion of Unlimited Liability company into Limited Liability Company

[pursuant to section 18 of the Companies Act, 2013 read with Rule 37 of the Companies (Incorporation) Rules, 2014]

I hereby certify that……………(name of the company prior to conversion) having unlimited liability has been converted into……….(name of the company after conversion) company having limited liability with effect from the date of this certificate on the company is limited by shares/limited by guarantee.

The CIN of the company is……………………………

Given under my hand at…………… this………………… day of…………… two thousand………………

SEAL:                                                                                                                     …………………

Registrar of Companies …………………………

(State)

[F. No. 1/13/2013 CL-V]

AMARDEEP SINGH BHATIA, Jt. Secy.

Note: - The principal rules were published in the Gazette of India, Extraordinary, Part-II, Section 3, sub-section (i), vide number G.S.R. 250(E), dated the 31st March, 2014, amended vide number G.S.R 349(E) dated 1st May, 2015, amended vide G.S.R. 442 (E) dated 29.05.2015 and lastly vide number G.S.R. 99(E) dated 22.01.2016.

Form No. INC-11A

Certificate of Incorporation pursuant to conversion of Unlimited Liability company into Limited Liability Company

[pursuant to Rule 37 of the Companies (Incorporation) Rules, 2014]

I hereby certify that (name of the company) has been converted from……………. to………………….. with effect from the date of this certificate on the company is limited by shares/limited by guarantee.

The CIN of the company is……………………………

Given under my hand at…………… this………………… day of…………… two thousand………………

SEAL:

 …………………

Registrar of Companies

…………………………

(State)

 

GOVERNMENT OF INDIA

Ministry of Corporate Affairs

NOTICE INVITING COMMENTS ON THE DRAFT COMPANIES (Incorporation) Second  AMENDMENT RULES 2016

Dated the 17th February, 2016

 

1. The draft Companies COMPANIES (Incorporation) Second AMENDMENT RULES 2016 i.e. conversion of unlimited liability company into limited liability company has been placed on the Ministry’s website at www.mca.gov.in. It has been decided to invite suggestions/comments on the above draft.

2. Suggestions/comments on above mentioned draft along with justification in brief may be sent latest by 02.03.2016 through email at [email protected]   It is requested that the name, Telephone number and address of the sender should be indicated clearly at the time of sending suggestions/comments.

Name, Address, Contact No. of Stake holder __________________

SL.No	Rule No.or Form No.	Suggestion	Justification

To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-Section (i)]

Government of India

Ministry of Corporate Affairs

NOTIFICATION

New Delhi, February, 2016

G.S.R..-In exercise of the powers conferred by sub-sections (1), (2) and (3) of section 18 read with sub-sections (1) and (2) of Section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Incorporation) Rules, 2014, namely:-

1. (1) These rules may be called the Companies (Incorporation) Second Amendment Rules, 2016.

(2) They shall come into force from the date of their publication in the Official Gazette.

2. In the Companies (Incorporation) Rules, 2014,

After existing Rule 36, the following Rules shall be inserted.-

37. Conversion of unlimited liability company into limited liability company:-

For effecting the conversion of an unlimited liability company into limited liability company, the company shall pass a special resolution in a general meeting and thereafter, an application shall be filed in Form INC-27 in the manner hereinafter provided.

(2) The Company shall within seven days from the date of passing of the special resolution in a general meeting, publish a notice of such proposed conversion in newspapers (one in English and one in vernacular language) in the district in which the registered office of the company is situate and shall also  place the same on the website of the Company, if any, indicating clearly the proposal of conversion of the company into limited liability company, and seeking objections if any from the persons interested in its affairs, to such conversion and cause a copy of such notice to be dispatched to its creditors and debentures holders by registered post or electronic mode or through courier with proof of dispatch. The notice shall also state that the objections, if any, may be intimated to the Registrar and to the company within twenty-one days of the date of publication of the notice, duly indicating nature of interest and grounds of opposition.

(3) The Company shall within sixty days of passing of the special resolution  file an application as prescribed in sub rule (1) for its conversion into Limited Liability Company alongwith the fees as provided in the Companies (Registration offices and Fees) Rules, 2014, by attaching the following documents, namely:-

a. Notice of the general meeting along with explanatory statement;

b.  Copy of the resolution passed in the general meeting;

c. Copy of the newspaper publication;

d. A copy of altered Memorandum of Association as well as Articles of Association duly certified by any one of the directors duly authorised in this behalf.

e. Declaration from all the directors of the Company that such conversion shall not affect any debts, liabilities, obligations or contracts incurred or entered into by or on behalf of the Company before conversion (except to the extent that the liability of the members shall become limited).

f. A complete list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than thirty days, setting forth the following details, namely:-

(i) the names and address of every creditor and debenture holder of the Company;

(ii) the nature and respective amounts due to them in respect of debts, claims or liabilities:

(iii) declaration by a director of the company that notice as  required in sub-rule (2) has been dispatched to all creditors and debenture holders with proof of dispatch.

g. A declaration signed by not less than two directors of the company, one of whom shall be a managing director where there is one, to the effect that they have made a full enquiry into the affairs of the Company and, having done so, have formed an opinion that the list of creditors is correct, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the Company to their knowledge.

h. A declaration of solvency signed by at least two directors of the company, one of whom shall be the managing director where there in one to the effect that the Board of Directors of the company have made a full inquiry into the affairs of the company, as a result of which they have formed an opinion that it is capable of meeting its liabilities and will not be rendered insolvent within a period of one year from the date of declaration, through a resolution, passed in a duly convened meeting.

i. The company should also obtain a certificate from the Statutory Auditors that the company is solvent and that it is a going concern as on the date of passing of resolution by the Board certifying solvency as per (h) above.

j. NOC from sectoral regulator, where necessary.

k. NOCs from all secured creditors, if any.

(4) Declaration from all the directors of the Company that no complaints are pending against the company from the members or investors.

(5) Where no objection has been received from any persons, who have been duly served with notice, the application shall be decided by the Registrar on merits.  Where an objection has been received, the company shall either obtain the objector’s consent to the conversion or his debt or claim has been discharged or determined or has been secured as the case may be, to the satisfaction of the Registrar.

(6) The certificate of incorporation consequent to conversion of unlimited liability company to the limited liability company in Form INC-11A shall be issued to the company upon grant of approval for conversion.

(7) Conditions to be complied with, subsequent to conversion:-

(i) Company shall not change its name for a period of one year from the date of such conversion.

(ii)  The company shall not declare or distribute any dividend without satisfying past debts, liabilities, obligations or contracts incurred or entered into before conversion.

(8) An Unlimited Liability Company shall not be eligible for conversion into Limited Liability Company in case ;-

(a) Its networth is negative, or

(b)  It has incurred losses continuously for the past three financial years, or

(c) Scrutiny or inquiry or investigation is pending and where it is completed and prosecution is pending against the company or its directors under the provisions of the Companies Act, 1956/2013 as consequence thereof, or

(d) An application is pending under the provisions of the Companies Act 1956/2013 for striking off its name, or

(e)  The company has defaulted in filing Annual Returns and or financial statements under the provisions of the Companies Act.

(ii) For the existing form INC-27 the following form INC-27 shall be substituted.

(iii) After the existing Form INC-11, the form no. INC-11A shall be inserted

Form No. INC-11A

Certificate of Incorporation pursuant to conversion of Unlimited Liability company into Limited Liability Company

[pursuant to section 18 of the Companies Act, 2013 read with Rule 37 of the Companies (Incorporation) Rules, 2014]

I hereby certify that……………(name of the company prior to conversion) having unlimited liability has been converted into……….(name of the company after conversion) company having limited liability with effect from the date of this certificate on the company is limited by shares/limited by guarantee.

The CIN of the company is……………………………

Given under my hand at…………… this………………… day of…………… two thousand………………

SEAL:                                                                                                                     …………………

Registrar of Companies …………………………

(State)

[F. No. 1/13/2013 CL-V]

AMARDEEP SINGH BHATIA, Jt. Secy.

Note: - The principal rules were published in the Gazette of India, Extraordinary, Part-II, Section 3, sub-section (i), vide number G.S.R. 250(E), dated the 31st March, 2014, amended vide number G.S.R 349(E) dated 1st May, 2015, amended vide G.S.R. 442 (E) dated 29.05.2015 and lastly vide number G.S.R. 99(E) dated 22.01.2016.

Form No. INC-11A

Certificate of Incorporation pursuant to conversion of Unlimited Liability company into Limited Liability Company

[pursuant to Rule 37 of the Companies (Incorporation) Rules, 2014]

I hereby certify that (name of the company) has been converted from……………. to………………….. with effect from the date of this certificate on the company is limited by shares/limited by guarantee.

The CIN of the company is……………………………

Given under my hand at…………… this………………… day of…………… two thousand………………

SEAL:

 …………………

Registrar of Companies

…………………………

(State)

Conversion of unlimited liability companies requires a special resolution, creditor notice, solvency declarations and Registrar approval. Rule 37 requires a special resolution to convert an unlimited liability company into a limited liability company, publication of a notice within seven days and dispatch to creditors with 21 days for objections, and filing Form INC-27 within sixty days with specified attachments including creditor lists, altered constitutional documents, director declarations, a solvency declaration, and a statutory auditor's certificate. The Registrar decides the application on merits; objections must be resolved by consent, discharge, determination or security. On approval, Form INC-11A is issued; post-conversion restrictions and explicit ineligibility criteria are prescribed.