(a) Procedure as to how the persons shall subscribe to the Memorandum
of Association and Articles of Association
In terms of **Section 7(1)(a)** of the Companies Act, 2013 (the Act), an
application for registration shall be filed with the Registrar of Companies,
within whose jurisdiction the registered office of the company is
proposed to be situated in Form SPICE+ (Simplified Proforma for
incorporating company electronically) plus INC 32 along with the fee as
provided under the Companies (Registration Offices and Fees) Rules, 2014
and Memorandum (e-MOU in Form No.INC-33) and Articles (e-AoA in
Form No. INC-34) of the company duly signed by all the subscribers to
the Memorandum as prescribed under by **Rule 13** of the Companies
(Incorporation) Rules, 2014.
S. No.
Particulars
In the case
of:
Legal Provision
1
Amrish
In terms of **Rule 13(a)**, each subscriber (in the
given case, Amrish) shall add his name,
address, description & occupation, if any, in
the presence of at least one witness who shall
attest the signature, shall sign and add his
name, address, description and occupation, if
any.
2.
Robert
In terms of **Rule 13(f)**, where subscriber to the
Memorandum is a Foreign National residing
outside India and visited India and intended
to incorporate a company, in such case the
incorporation shall be allowed if, he/she is
having a valid Business Visa.
3.
Eliza
In terms of **Rule 13(e)**, where subscriber to the
memorandum is a foreign national residing
CORPORATE AND OTHER LAWS
outside India his signatures and address on
the Memorandum and Articles of Association
and proof of identity shall be notarized by a
Notary (Public) with a certificate.
Since Eliza is a foreign national residing
outside India, her signature and address on
the Memorandum and Articles of Association
and proof of identity shall be notarized by a
Notary (Public) with a Certificate.
**Rule 13(e)** further provides that if a person
residing in a Country outside the Common
Wealth or which is not a party to the Hague
Apostille Convention, 1961, the Certificate of
the Notary (Public) shall be authenticated by
a Diplomatic or Consular Officer.
Note:
In the given case, Netherlands is a Country
outside the Common Wealth hence, the
Certificate of the Notary (Public) shall be
authenticated by a Diplomatic or Consular
Officer.
4.
Goma Devi
In terms of **Rule 13(b)** since Goma Devi is an
illiterate person, she shall affix her thumb
impression or mark which shall be described
as such by the person, writing for him, who
shall place the name of the subscriber against
or below the mark and authenticate it by his
own signature and he shall also write against
the name of the subscriber, the number of
shares taken by her.
5.
Goodwork
Technologies
LLP
In terms of **Rule 13(d)**, where the subscriber is
a Limited Liability Partnership, it shall be
signed by a Partner of the Limited Liability
Partnership, duly authorized by a resolution
approved by all the partners of the Limited
Liability Partnership.
6.
Mohit
Electronics
Private
Limited
In terms of **Rule 13(c)**, where the subscriber is
a body corporate, the Memorandum and
Articles of Association shall be signed by
director, officer or employee of the body
corporate duly authorized in this behalf by a
resolution of the board of directors.
(b) (i) Procedure to fill up the casual vacancy of the office of the
Statutory Auditor
**Section 139(8)** of the Companies Act, 2013 (the Act) describes the
procedure for filling up the vacant position of the office of Statutory
Auditor caused by a casual vacancy.
Accordingly, in case of a company other than a company whose
accounts are subject to audit by an auditor appointed by the
Comptroller and Auditor and General of India, the Board of directors
may fill any casual vacancy in the office of an auditor within 30 days.
Any auditor appointed in a casual vacancy shall hold office until the
conclusion of the next annual general meeting.
Further, in terms of **Section 139(11)** of the Act, where a Company is
required to constitute an Audit Committee under **Section 177** of the
Act, all appointments, including the filling of a casual vacancy of an
auditor under this section shall be made after taking into account the
recommendations of such committee.
(ii) Whether the contention raised by Keshav is justified?
As per the above provision [**Section 139(1)** of the Act], Keshav
(auditor appointed in a casual vacancy) can hold office until the
conclusion of the next annual general meeting i.e. 28th August, 2024.
Thus, the company can validly appoint Aashish as Statutory Auditors
in the AGM held on 28th August, 2024. Hence, the contention raised
by Keshav is not justified. Further, in this AGM, the Board of Directors
of ABC Ltd. have already recommended to the shareholders for the
appointment of Aashish as the new Statutory Auditor.
CORPORATE AND OTHER LAWS
(iii) If the casual vacancy in the office of the Statutory Auditor in the
company was caused by resignation of Sangeeta.
As per **Section 139(8)(i)** of the Act, where the casual vacancy is caused
by the resignation of an auditor, such appointment shall also be
approved by the company at a general meeting convened within
three months of the recommendation of the Board and he shall hold
the office till the conclusion of the next annual general meeting.
If the casual vacancy in the office of auditor (Sangeeta) was caused by
resignation of Sangeeta, the appointment of Keshav shall also be
approved by the company at a general meeting convened within
three months of the recommendation of the Board and the tenure of
such new auditor shall be till the conclusion of the next AGM.
(c) As per **Section 2(v)** of the Foreign Exchange Management Act, 1999,
“Person Resident in India” includes a person residing in India for more
than 182 days during the course of the preceding financial year but does
not include, a person who has come to or stays in India, in either case,
otherwise than for any purpose, in such circumstances as would indicate
his intention to stay in India for an uncertain period.
As per provisions of the Foreign Exchange Management Act, 1999, a
person resident in India may hold, own, transfer or invest in foreign
currency, foreign security or any immovable property situated outside
India if such currency, security or property was acquired, held or owned
by such person when he was resident outside India or inherited from a
person who was resident outside India.
The RBI vide A.P. (DIR Series) Circular No. 90 dated 9th January, 2014 has
issued a clarification on **Section 6(4)** of the Foreign Exchange
Management Act, 1999. This circular clarifies that **Section 6(4)** of the Act
covers the following transactions:
1.
Foreign currency accounts opened and maintained by such a person
when he was resident outside India.
2.
Foreign exchange including any income arising therefrom, and
conversion or replacement or accrual to the same, held outside India
by a person resident in India acquired by way of inheritance from a
person resident outside India.
In the given question Mr. V has permanently returned to India on 24th
November, 2024. Hence, he will be treated as a person resident in
India from 24th November, 2024.
According to the Foreign Exchange Management (Permissible Capital
Account Transactions) Regulations, 2000, a person resident in India is
permitted to maintain his foreign currency accounts and take
insurance policy from an insurance company outside India.
Based on the above provisions, we can conclude that Mr. V who is
residing in India since 2024, is now, a person resident in India and he
is permitted to hold his bank account in USA and also pay for his
insurance policy from that account.
ALTERNATE ANSWER:
According to the **Section 6(4)** of the Foreign Exchange Management Act,
1999, a person resident in India may hold, own, transfer or invest in
foreign currency, foreign security or any immovable property situated
outside India if such currency, security or property was acquired, held or
owned by such person when he was resident outside India or inherited
from a person who was resident outside India.
The RBI vide A.P. (DIR Series) Circular No.90 dated 9th January, 2014 has
issued a clarification on **Section 6(4)** of the FEMA Act, 1999. This circular
clarifies that section 6(4) of the Act covers the following transaction:
In terms of **Section 6** (4) (iv) of FEMA, 1999, a person resident in India can
freely utilize their eligible assets abroad, as well as income on such assets
or sale proceeds thereof received after their return to India for making
any payments or to make fresh investments abroad without approval of
the Reserve Bank of India, provided the cost of such investments and/or
any subsequent payments received therefore are met exclusively out of
the funds forming part of eligible assets held by them and the
transactions is not in contravention to the extant of FEMA provisions.
V has inherited money from his wife, who was a person resident outside
India. V has been a resident in India since 24th November, 2024, as he had
permanently returned to India from abroad. Thus, amounts in his foreign
bank accounts are classified as eligible assets under the FEMA.
CORPORATE AND OTHER LAWS
Therefore, under **Section 6(4)** of the FEMA, 1999 and vide the above RBI
circular, ‘V’ can pay the insurance premium from his bank account in the
USA for his insurance policy taken in the USA, as taking an insurance
policy is a permitted transaction under Schedule I of the Foreign
Exchange Management (Permissible Capital Account Transactions)
regulations, 2000. So, by that account, paying a premium is also a
permissible transaction.