CONVERSION OF A PUBLIC LIMITED COMPANY INTO A PRIVATE LIMITED COMPANY

Many times there are circumstances which drive a Company to convert its nature from public to private. These circumstances may be such as favorable exemption provided to a private company or the business need or may be the market situation. So, let us discuss the detailed procedure for conversion of public company into private.

POWERS DELEGATED TO RD:

By Companies (Amendment) Ordinance, 2018, Power of Tribunal has been transferred to Central Government. Ministry of Corporate Affairs (MCA) on 18^th December, 2018 has published Companies (Incorporation) Fourth Amendment Rules, 2018 which shall come into effect from 18^th December, 2018.

By these rules, MCA amended Rule 41 “applicability under Section 14 for conversion of Public Company into Private Company” wherein “Power of Central Government has been assigned to Regional Director to look into the matter related to approval of conversion of public limited company into private limited company”.

PROVISION DEALING WITH CONVERSION OF PUBLIC LIMITED INTO PRIVATE LIMITED:

Section 13: Deals with alteration of Memorandum of Association.
Section 14: It provides for alteration of Articles of Association.
Section 18: It provides the manner in which an existing Company can convert itself as a company of other class under this Act by alteration of memorandum and articles of the company in accordance with the provision of chapter II of the Act.
Rule 41 of Companies (Incorporation) Fourth Amendment Rules, 2018: Rule 41 deals with Application to be filed under Section 14 for conversion of public company into private company.

PROCEDURE FOR CONVERSION OF A PUBLIC COMPANY TO PRIVATE LIMITED COMPANY:

STEP-I: CONVENE BOARD MEETING

The very first step is to convene Board Meeting for passing of Board resolution to get in principal approval of Directors for conversion and to convene Extra Ordinary General meeting to take approval for conversion from the shareholder of the Company. Points to be considered for convening of Board Meeting:

Clear 7 days notice along with agenda and notes is to be circulated among the Directors of the Company.
Board Meeting can be held at a shorter notice, provided shorter consent is obtained from the Director before the meeting.
Agenda and notes to be circulated among the Board Members much in advance.
Notice of meeting should clearly mention the day, date, place and time of meeting.

STEP –II: MATTERS TO BE CONSIDERED IN BOARD MEETING:

To take in-principal approval for conversion of Public Company into Private Company.
To obtain approval for Alteration in Memorandum and Articles of Association and recommend the proposal for conversion to be considered by way of special resolution by the members in general meeting
To finalise the date, time, and venue of the general meeting and authorizing a director or any other person to send the notice for the same to the members.
To approve General Meeting Notice along with explanatory statement to be annexed with notice as per Section 102(1) of the Act.

STEP- III: ISSUE NOTICE OF GENERAL MEETING

Notice of General Meeting shall be circulated at least 21 days before the actual date of General Meeting. General Meeting can also be called at a Shorter Notice provided the consent of members as is obtained as per the provision provided in Section 101 of the Companies Act, 2013. The notice shall be issued to the following persons:

– All the Directors

– Members

– Auditors of Company

The notice shall specify the place, date, day and time of the meeting and contain a statement on the business to be transacted at the General Meeting.

STEP- IV: HOLD GENERAL MEETING (SECTION 101)

Take attendance of the person attending the General Meeting and ensure minimum Quorum is present.
Check whether auditor is present of not. If not, then grant Leave of absence.
Pass Special Resolution for conversion of Public Company into Private Limited Company along with

a) Approval of Alteration in AOA

b) Approval of alteration in Memorandum of Association

STEP- V: FILING OF SPECIAL RESOLUTION PASSED FOR CONVERSION WITH THE ROC (SECTION 117)

The Special Resolution passed for conversion of Public limited into Private limited shall be filed in Form MGT-14 (Filing of Resolutions and agreements to the Registrar under section 117) with the Registrar along with the requisite filing within 30 days of the General Meeting, along with given documents:-

Certified True Copy of the Special Resolution passed along with explanatory statement;
Copy of General Meeting Notice as circulated to the members along with annexures;
A copy of the Altered Article of Associations and Memorandum of Association.

STEP- VI: DRAFTING AND FILING OF APPLICATION WITH REGIONAL DIRECTOR (IN FORM RD-1)-

Application to Regional Director shall be filed within 60 days from the date of passing of Special Resolution in e-form RD-1.

Following documents are required to be annexed with the application for conversion of Public Company into a Private Company under Section 14(1) of the Act:

a) Statement stating grounds on which the application is made

b) Copy of the memorandum and articles of association with proposed alterations

c) Certified Copy of Minutes of General Meeting (mentioning details of votes cast in favour or against)

d) Attendance Sheet of Members present in General Meeting

e) Board Resolution authorization to file application for conversion (dated not earlier than 30 days)

f) Copy of amended MOA & AOA of the Company

g) Declarations by the Directors and KMP

h) List of Creditors and Debenture holders

i) Copy of News Paper Advertisement

j) Power of Attorney or Memorandum of Appearance

k) Details of conversion made, if any, within last five years and outcome thereof along with copy of order

l) Details as to whether the company is registered under section 8

a) Declaration in form of Affidavit:

Declaration by Key Managerial Personal (If company not having KMP then by any Director) i.e. with regard to the following:

i) the Company limits its members to 200, and that no deposit has been accepted in violation of the Act and rules by the Company.

ii) there is no non-compliance of Section 73 to 76A, 177, 178, 185,186 and 188 of Act an rules made thereunder

iii) that no resolution in terms of Section 179(3) is pending to be filed and

iv) that the company was never listed on stock exchange, and if listed, then the Company has complied with the relevant provisions

b) Details of Creditors and Debenture holders:

A List of Creditors and Debenture Holders shall be annexed to the application which is drawn up to the latest practicable date preceding the date of filing of petition by not more than 30 days, setting forth the following details, namely:-

a) names and address of all creditors and debenture holders of the company;

b) the nature of debts, claims or liabilities and their respective due amount;

c) the value, in respect of any contingent or unascertained debt or any such claim admissible to proof in winding up of the company, so far as can be justly estimated of such debt or claim:

c) Affidavit verifying list of Creditors and Debenture holders:

The applicant company shall file an affidavit 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. Further, the affidavit shall be 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,

d) Publication of News Paper Advertisement:

The company shall at least 21 days before the date of filing of application:

a) News Paper Advertisement: Newspaper advertisement for conversion shall be given in Form No. INC 25A, at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situated, and at least once in English newspaper published in English language circulating in that district. (Advertisement shall be published in widely circulated newspaper in the State in which the registered office of company is situated)

b) Speed Post to Creditors: The Company shall serve, by registered post with acknowledgement due, individual notice to each debenture-holder and creditor; and

c) Service of Petition to ROC/RD: serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Central Government (Regional Director), 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.

STEP- VII: D FILING OF E-FORM INC-28 AND E-FORM INC-27

Pursuant to satisfying the queries of Regional Director on processing of E-Form RD-1, the Regional Director shall pass the order of approval for conversion of Public Limited into Private Limited and approve the E-form RD-1.

Once E-form RD-1 is approved, File e-form INC-28 with ROC within 15 days of receipt of order of conversion of Public Limited into Private Limited by Regional Director.

Important Note: After the approval of form INC-28, the Company has to file Form INC-27 with ROC in respect to change the status of the company from public company to private Limited Company

With the Approval of FORM INC-27, the Concerned ROC shall issue the Certificate of such conversion from Public Limited to Private Limited.

E-FORMS TO BE FILED WITH THE REGISTRAR OF COMPANIES:

The following Forms are to be filed with the Registrar of Companies:

Sl. No.	Form Names and Particulars	Time limit
1.	MGT-14: Passing of Special Resolution	30 days of passing Special Resolution
2.	Form RD-1: Application for conversion of Public Limited into Private Limited	Within 60 days of passing of Special Resolution
3.	Form INC-28: Order of Regional Director for conversion of Public Limited into Private Limited	Within 15 days from the date of receipt of approval
4.	Form INC-27: Conversion of public company into private company	Within 30 days of receipt of order

CONCLUSION:

The process of conversion of public company into private company is not cumbersome. However, for smooth processing and easy liasioning with Department, it is advisable to seek help of professional who are experts in this area. In case you need any assistance, feel free to contact us @ complianceship@gmail.com or +91- 78386 57554 or +91- 80102 33173 or also visit our website www.compliaceship.com.

Disclaimer: This Blog/ Post/ Article or Content etc. is made available by the ComplianceShip solely for educational purpose and to give general information of a particular topic or updates and an understanding of the law, not intending to provide specific legal advice, by using this, you understand that there is no attorney client relationship between us.

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