Common seal

Secretarial Standards have not been formed part of Comanies Act, Secretarial Standards are recommendary for better corporate practice, not compulsorily followed by companies, So that Articles of company prevail over SS.    

Generally there is article in AOA of company that The regulation contained in the table A of the First Schedule to the companies Act, 1956 shall apply to the company so far as applicable to a private company except as otherwise provided impliedly or expressly by the following articles.

In your  company articles otherwise provided sothat Articles of Association of company prevail over Sechdule 1A.

POSITION OF AOA IN PUBLIC COMPANY

Kindly appreciate it is optional for a public companies limited by shares to get its articles registered. It may be registered without its own set of articles. Section 28 of the Companies Act, 1956 provides that if a public company does not register articles of its own, the provisions in Table 'A' of Schedule I to the Act will automatically apply to such company. Generally, a public company formulates its own Articles and registers it along with Memorandum. Therefore a public company may either:—

(i) formulate and register Articles of its own within the provisions of the Act and the Memorandum of Association; or

(ii) adopt Table 'A' of Schedule I as its Articles; or

(iii) partially adopt Table 'A' and also have its own articles.

As per the judgement in Seth Mohan Lal v Grain Chambers Ltd. (1968), If a company has not expressly or by implication excluded any regulation in Table A, regulation will be deemed to be incorporated in its articles.

POSITION OF AOA IN PRIVATE COMPANY

It is essential for a private limited company to have its own articles including the four restrictions as provided in section 3(1)(iii) of the Companies Act, 1956. [Section 27(3)].

With these restrictions the private limited companies are having liberty to adopt all or any of the regulations contained in Table 'A'.

Best Regards

Ankur Garg

Thanks Mr.Prakash & Mr. Ankur

would you be kind to interpret the lines in article already mentioned in original querry? means if in the given situation article prevails then can we affix common seal in the presence of only one director. ( Pub Ltd.)

Regards

Originally posted by : CS Aditya Agrawal
	Thanks Mr.Prakash & Mr. Ankur would you be kind to interpret the lines in article already mentioned in original querry? means if in the given situation article prevails then can we affix common seal in the presence of only one director. ( Pub Ltd.) Regards

Bhai ji….let us know the position of Table A in your AOA. You may find it in the first page of AOA. Just check whether AOA excludes Table A or includes.

Sirji i have alredy written that article prevails means our AOA excludes Table "A".

Originally posted by : CS Aditya Agrawal
	Sirji i have alredy written that article prevails means our AOA excludes Table "A".

Hmmm...here as per understanding of section 26, 27 and 28, you should simply follow the provision of your Article.

I am sorry to bother u again n again but still you dint get my querry, i just want to know that as AOA says, " Seal shall never be used except by the auhority of the Director or committee of Directors previously given and one Director at least shall sign every instrument to which the seal is affixed."

Does it mean that the seal can be affixed in presence of only one director?

Originally posted by : CS Aditya Agrawal
	I am sorry to bother u again n again but still you dint get my querry, i just want to know that as AOA says, " Seal shall never be used except by the auhority of the Director or committee of Directors previously given and one Director at least shall sign every instrument to which the seal is affixed." Does it mean that the seal can be affixed in presence of only one director?

Your AOA is silent about presense of director. However Signing instrument to which the seal is affixed by the director implied that seal was affixed in his presence.AOA saying that use of seal should be authorised by the board of committee of directors and at least shall sign every instrument to which the seal is affixed.

If your Articles says so, then one Director so authorised can the sign and affix the Comman Seal.

But for share certifcate it should be 2 directors as per issue of share certificate rules.

Yes, if your Articles exclude Table A and provide for signature of only one director, then only one director is required to sign a document as witness to common seal.  However, in case of share certificates, Companies (Issue of Share Certificates) Rules will prevail over your Articles and two directors and Secretary/authorised signatory will have to sign the certificates.

Originally posted by : P C Agrawal
	However, in case of share certificates, Companies (Issue of Share Certificates) Rules will prevail over your Articles and two directors and Secretary/authorised signatory will have to sign the certificates.

Totally agree with Agarwal ji. Here section 9 comes into picture.

Section 9(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.

Originally posted by : P C Agrawal
	Yes, if your Articles exclude Table A and provide for signature of only one director, then only one director is required to sign a document as witness to common seal.  However, in case of share certificates, Companies (Issue of Share Certificates) Rules will prevail over your Articles and two directors and Secretary/authorised signatory will have to sign the certificates.

Agree with the view