1935 (12) TMI 27

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....ng Secretary to the Aryya Swamic Ltd., who are the secretaries of the Insurance Company. Apparently there are two factions in the company directly opposed to one another and considerable litigations have taken place in Silchar on matters connected with this company. Clause 2 of the memorandum of association is as follows: "The registered office of the company will be situated in the town of Silchar. The company can open branch offices anywhere." At a meeting held on 14th July 1935 in the town of Sylhet a resolution was passed that the registered office of the Aryya Insurance Co., Ltd., be removed to Sylhet. The petitioner contends that that resolution was illegal inasmuch as it purported to effect a change in the memorandum of associa....

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....aster of the Rolls, said: "It is admitted that the resolutions made an alteration in a condition contained in the memorandum of association, but it is said that the alteration was not as to any of the matters mentioned in section 8 (which corresponds to section 6, Companies Act) and that therefore it was not alteration of a condition in the memorandum of association within the meaning of the statute, and it was argued that the meaning of section 12 is only that those conditions in the memorandum of association as required by section 8 could not be altered and that other conditions in the memorandum of association could be altered if altered with the assent of every shareholder of the company." No question arises here with regard to th....

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....to p. 28, 14th Edn. of Palmer's Company Law. The learned author is there dealing with the conditions and provisions generally inserted in the memorandum of association. He refers to the main provisions required by the English Act to be stated in the memorandum, and continues: "...but occasionally additional provisions are inserted, clauses, for example, defining the rights attached, as above mentioned, to different classes of shares, rights as regards dividend, voting, and participation in assets on a winding up and various other matters. There is nothing illegal in the insertion in the memorandum of such additional provisions, but it must be borne in mind that, if inserted without qualification, they become conditions continued in the c....

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....f Fry L. J. in the same case in dealing with section 12 of the English Companies Act of 1882, which corresponds with section 10 of the Indian Companies Act. Fry, L.J. says: "Now that section, it must be borne in mind, does not refer to necessary conditions or to essential conditions, and section 8, though it specifies certain conditions, does not say that no other conditions shall be in the memorandum of association. I am not prepared to say that there might not be inserted in the memorandum of association details with regard to the management of the company which would not be conditions within the meaning of section 12; but I think that that section does not apply to all conditions in the memorandum of association which may fairly by de....

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....bject to that limitation, fix its office anywhere it likes within the chosen area and change it from time to time provided it gives notice of each change to the Registrar." Similarly, in this country, the company's memorandum must state the province in which the office of the proposed company must be situate, but once that province has been declared there appears to me to be no valid reason why the company should not fix its office anywhere it likes within that province, and change it from time to time, on giving notice. It is stated that the reason why the town was mentioned here, instead of the province, was because at the time that this company was incorporated the Act of 1882 was in force under which it was not the province which had....