PROVISIONS OF COVERSION OF PUBLIC COMPANY INTO PRIVATE COMPANY

PROVISIONS OF COVERSION OF PUBLIC COMPANY INTO PRIVATE COMPANY
Keeping in view the relaxations provided to a Private Company, many public companies have converted into Private Companies or in the process of such conversion. Through this brief write up an attempt has been made to unlock the technicalities related to Conversion of Public Company into Private Company prescribed under Companies Act, 2013. Power of Conversion of Public Company into Private Company has been transferred to NCLT (Tribunal) [1]w.e.f. 1st June, 2016 vide MCA notification S.O. 1934(E).

At the time of Conversion Company have to make several alterations. Some of them are mentioned below:



REGULATORY REQUIREMENTS:

Conversion of status of company from public to private would become effective form the date of receipt of the approval of the Registrar by means of issuing a new certificate of Incorporation. Section 13, 14, 15 & 18 of Companies Act, 2013, Rule 33(2) Companies (Incorporation) Rules, 2014 and [2]Rule 68-National Company Law Tribunal Rules, 2016 regulate the conversion of public Company into Private Limited Company.

As per Section 13 and Section 14 of the Companies Act 2013 read with Rule 33 of Companies (Incorporation) Rules, 2014. A public company can be converted into the private company only after obtaining its shareholders approval by way of passing of special resolution in general meeting.

[As per Second Proviso of Section 14(1)] For Conversion of Public Company into Private Limited Company foremost requirement is Alteration in Article of Association of Company. According to the Act any alteration having the effect of conversion of a public company into a private company shall not take effect except with the approval of the [3]Tribunal (NCLT) which shall make such order as it may deem fit.

Procedure/Steps for Conversion of Public Company Into Private Company


First Step: Holding of Board Meetings
Holding of Board Meeting:
Company will convey a Board Meeting as per provisions of Section 173 and Secretarial Standard 1 to meet with primary requirement for such conversion. General matters for discussion in board meeting are like:
§   Approval of Conversion of Company subject to approval of Tribunal
§  Authorize any Director, Company Secretary of the Company for completing the necessary compliances, formalities, Issue of Notice of General Meeting (As per SS 2) etc.
§  Authorizing professional or legal practitioner/ advocate to appear before Tribunal
§  To fix date, time and place for holding Extraordinary General meeting (EGM) to get approval of shareholders, by way of Special Resolution, for conversion of a public company into a private company

Holding of General Meeting:
Company will convey the General meeting to pass special resolution for alteration in AOA & MOA of the Company for the purpose of conversion of the Company.


Filing of MGT-14 with ROC:
As per Section 117(3)  Copy of this special resolution is required to be filed with concerned ROC through filing of form MGT.14 within 30 days of passing special resolution in the EGM.

Second Step: Preparation of Petition

Preparation of Petition:
The petition under second provision of Section 14(1) for the approval of conversion of public company into a private company shall be filed with the Tribunal (NCLT).  The petition shall be filed in form No. NCLT-1.

Time Period of Filing of Petition:
The petition shall be filed with the Tribunal not less than 3 month from the date of passing of Special Resolution.

Particulars of Petition in NCLT-1:
As per Rule 68(2) of National Company Law Tribunal Rules, 2016 every petition filed under NCLT-1 shall set out the following particulars:
        i.            The date of the Board meeting at which the proposal for alteration of Articles was approved;
      ii.            The date of the general meeting at which the proposed alteration was approved;
    iii.            State at which the registered office of the company was situated;
    iv.            Number of members in the company, number of members attended the meeting and number of members of voted for and against;
      v.            Reason for conversion into a private company, effect of such conversion on shareholders, creditors, debenture holders and other related parties.
    vi.            Listed or unlisted public company;
  vii.            The nature of the company, that is, a company limited by shares, a company limited by guarantee (having share capital or not having share capital) and unlimited company.

Third Step: Preparation of Documents to be filed with Petition in NCLT-1:
Details of Creditors & Debenture Holders:
There shall be attached to the application (NCLT-1),
§  List of creditors and
§  List of debenture holders,

List of Creditors and debentures holders should not be older than 2 month from the date of filing of application with Tribunal.

List should conation 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.            In respect of any contingent or unascertained debt or any such claim admissible to proof in winding up of the company, the value, so far as can be justly estimated of such debt or claim:

Affidavit verifying the List of Creditors/ Debenture Holders:-
Company shall file an [4]affidavit signed by the company secretary of the company, if any, and 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.

Inspection of List of Creditors/ Debenture Holders:-
A duly authenticated copy of the list of creditors shall be kept at the registered office of the company and any person desirous of inspecting the same may, at any time during the ordinary hours of business, inspect and take extracts from the same on payment of the sum of rupees ten per page to the company

Affidavit of Acknowledgement of Issue of Advertisement and service of Notice:
An affidavit shall be filed to the Tribunal, not less than three days before the date fixed for hearing, stating whether the petition has been advertised in accordance with this rule 35 and whether the notices, if any, have been duly served upon the persons required to be served.
Fourth Step: Publication and Service of application:
Publication of Advertisement:

The Company shall at least 14 days before the date of hearing advertise the petition in accordance with Rule 35. The application will be advertise in form NCLT 3A. As per rule 35 following are the provisions regarding advertisement of the petition:

·         To be publish at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situate, and at least once in English language in an English newspaper circulating in that District.

Details to be mentioned in Advertisement:
Every such advertisement shall state;-
        i.            the date on which the application, petition or reference was presented;
      ii.            the name and address of the applicant, petitioner and his authorised representative, if any;
    iii.            the nature and substance of application, petition or reference;
    iv.            the date fixed for hearing;
      v.            a statement to the effect that any person whose interest is likely to be affected by the proposed petition or who intends either to oppose or support the petition or reference at the hearing shall send a notice of his intention to the concerned Bench and the petitioner or his authorised representative, if any, indicating the nature of interest and grounds of opposition so as to reach him not later than two days previous to the day fixed for hearing.

Publication on Website of the Company:

Where the advertisement is being given by the company, then the same may also be placed on the website of the company, if any.

Notice to Creditors/ Debenture Holders:

The Company shall at least 14 days before the date of hearing serve, by registered post with acknowledgement due, individual notice in Form No. NCLT-3B to each debenture-holder and creditor of the company.

 Notice to Authorities:

The Company shall at least 14 days before the date of hearing serve , by registered post with acknowledgement due, a notice together with the copy of the petition to the Central Government, Registrar of Companies and to the Securities and Exchange Board of India, in the case of listed companies and to the regulatory body, if the company is regulated under any other Act.

Objections:
Where any objection of any person whose interest is likely to be affected by the proposed petition has been received by the petitioner, it shall serve a copy thereof to the Registrar on or before the date of hearing.
Fifth Step: Hearing by Tribunal:
Tribunal shall hear the Company and all the parties that have raised objections and are desirous of being heard. It will also take note of the observations/ objections, if any, received from the statutory authorities.
After hearing all the Parties, if it is satisfied, having regard to all the circumstances of the case, that the conversion would be in the interest of the company or is not being made with a view to contravene or to avoid complying with the provisions of the Act, allow the conversion.

Sixth Step: Filing of Form with ROC:
After receiving of order Company will file Form INC-27 along with copy of the order of the Tribunal along with below mentioned attachment within 15 days.
·         Copy of Order of Tribunal
·         Minutes, CTC of Special Resolution, Notice & explanatory statement of General Meeting
·         Altered copy of MOA & AOA
·         List of Creditor
·         Affidavit from the Director or MD or WTD affirming letter of no objection is obtained from the all creditors and debenture holders.
Seventh Step: New Certificate of Incorporation from ROC:
On being satisfied that all the information and documents are submitted and all requirements under the Act are complied with, ROC shall issue a new certificate of incorporation of the Company after regarding all the documents and information.

(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)
Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.
This is only a knowledge sharing initiative and author does not intend to solicit any business or profession.




[3] Till 1st June, 2016 power of tribunal was assign to ROC, As per General Circular No. 18/2014 dated June 11, 2014. “For Conversion of Public Company into Private Limited Company the corresponding provisions of Companies Act, 1956 shall remain in force till corresponding provisions of Companies Act, 2013 are notified. Power of Central Government will be vest into the ROC.”

[4] Duly notarized copy of the Afidavit.

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