Saturday, November 21, 2015

Act to override memorandum, articles, etc.





This  section  6  of  Companies  Act  2013  is  corresponding  to  Section 9  of  the  Companies Act, 1956.  This  is  repetition  of  old  act  and  no  change  in  the  provisions.



Sec 9 - Act to override memorandum, articles, etc.
Save as otherwise expressly provided in the Act :
(a)  the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act ; and
(b)  any provision contained in the memorandum, articles, agreement or resolution aforesaid shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be.

Act to override memorandum, articles, etc.
6. Save as otherwise expressly provided in this Act—
(a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act; and

(b) any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be.


Commentary

This  section  corresponds  to    Section 9  of  the  Companies  Act  1956   and   the  main  contents  are  as  follows

The provisions of the Companies Act, 2013 shall have effect disregarding anything to the contrary contained in the following:
  1. Memorandum or Articles of association of a Company, or
  2. in any agreement executed by the Company, or
  3. in any resolution passed by the Company in general meeting or by its Board of Directors.
Decided  case  Cricket Club of India and Others v. Madhav L. Apte and Others (1975) Comp Cas 574 (Bom).

20th Century Finance Corporation Ltd v. RFB Latex Ltd. [1999] 34 CLA 267 (CLB), where parties entered into arbitration agreement to resolve their disputes and then seeking shelter of section 9 of the Companies Act (corresponding to Section 6) does not survive in view of Section 8 of the Arbitration and Conciliation Act, 1996.

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