DOCUMENTS AND CERTIFICATION

In this blog we will discuss provisions relating to documents related to foreign company and their certification.

Office where documents to be delivered and fee for registration of documents

Any document which any foreign company is required to deliver to the Registrar shall be delivered to the Registrar having jurisdiction over New Delhi, and references to the Registrar in Chapter XXII of the Act i.e.

Companies Incorporated Outside India and these rules shall be construed accordingly. [Rule 8(1) of the Companies (Registration of Foreign companies) Rules 2014]

The fee to be paid to the Registrar for registering any document relating to a foreign company shall be such as provided in the Companies (Registration Offices and Fees) Rules, 2014. [Rule 8(2) of the Companies (Registration of Foreign companies) Rules 2014]

If any foreign company ceases to have a place of business in India, it shall forthwith give notice of the fact to the Registrar, and as from the date on which notice is so given, the obligation of the company to deliver any document to the Registrar shall cease, provided it has no other place of business in India. [Rule 8(3) of the Companies (Registration of Foreign companies) Rules 2014]

Certification

A copy of any charter, statutes, memorandum and articles, or other instrument constituting or defining the constitution of a Foreign company shall be duly certified to be a true copy in the manner given below –

1. If the companyis incorporated in a country outside theCommonwealth-
   1. the copy aforesaid shall be certified as a true copyby-
      1. an official of the Government to whose custody the original is situated; or
      2. a Notary (Public) of such Country; or
      3. an officer of the company.
   2. The signature or seal of the official referred to in sub-clause (i) of clause (a) or the certificate of the Notary (Public) referred to in sub-clause (ii) of clause (a) shall be authenticated by a diplomatic or consular officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and fees) Act, 1948 (XL of 1948), or where there is no such officer, by any of the officials mentioned in section 6 of the Commissioners of Oath Act, 1889 (52 and 53 Vic. C. 10), or in any relevant Act for the said purpose.
   3. The certificate of the officer of the company referred to in sub-clause (iii) of clause (a) shall be signed before a person having authority to administer an oath as provided under section 3 of the Diplomatic and Consular Officers (Oath and Fees) Act, 1948 (XL of 1948), or as the case may be, by section 3 of the Commissioners of Oath Act, 1889 (52 and 53 Vic, C. 10) and the status of the person administering the oath in the latter case being authenticated by any official specified in section 6 of the Commissioners of Oaths Act, 1889 (52 and 53 Vic. C. 10) or in any relevant Act for the said purpose.
2. If the companyis incorporated in any part of the Commonwealth, the copy of the document shall be certified as a true copyby-
   1. an official of the Government to whose custody the original of the document is committed; or
   2. a Notary (Public) in that part of the Commonwealth; or
   3. an officer of the company, on oath before a person having authority to administer an oath in that part of the Commonwealth.
3. Any altered document delivered to the Registrar should also be duly certified in the manner mentioned above.
4. If the Companyis incorporated in a country falling outside the Commonwealth, but a party to the HagueApostille Convention,1961-
   1. the copy of the documents shall be certified as a true copy by an official of the Government to whose custody the original is committed and be duly apostillised in accordance with Hague Convention;
   2. a list of the directors and the secretary of the Company, if any, the name and address of persons resident in India, authorized to accept notice on behalf of the Company shall be duly notarized and be apostillised in the Country of their origin in accordance with Hague Convention;
   3. the signatures and address on the Memorandum of Association and proof of identity, where required, of foreign nationals seeking to register a company in India shall be notarized before the notary of the country of their origin and be duly apostillised in accordance with the said Hague Convention. [Rule 9 of the Companies (Registration of Foreign companies) Rules 2014]

Authentication of translated documents

All the documents required to be filed with the Registrar by the foreign companies shall be in English language and where any such document is not in English language, there shall be attached a translation thereof in English language duly certified to be correct in the manner given in these rules. [Rule 10(1) of the Companies Act 2013]

Where any such translation is made outside India, it shall be authenticated by the signature and the seal, if any, of-

• the official having custody of the original; or
• a Notary (Public) of the country (or part of the country) where the company is incorporated. [Rule 10(2) of the Companies Act 2013]

Where the company is incorporated in a country outside the Commonwealth, the signature or seal of the person so certifying shall be authenticated by a diplomatic or consular officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, or, where there is no such officer, by any of the officials mentioned in section 6, of the Commissioners of Oaths Act, 1889 (52 and 53 Vic C 10), or in any relevant Act for the said purpose. [Proviso to Rule 10(2) of the Companies Act 2013]

Where such translation is made within India, it shall be authenticated by-

• an advocate, attorney or pleader entitled to appear before any High Court; or
• an affidavit, of a competent person having, in the opinion of the Registrar, an adequate knowledge of the language of the original and of English. [Rule 10(3) of the Companies Act 2013]

Documents to be annexed to prospectus

The following documents shall be annexed to the prospectus, namely:-

• any consent to the issue of the prospectus required from any person as an expert;
• a copy of contracts for appointment of managing director or manager and in case of a contract not reduced into writing, a memorandum giving full particulars thereof;
• a copy of any other material contracts, not entered in the ordinary course of business, but entered within preceding two years;
• a copy of underwriting agreement; and
• a copy of power of attorney, if prospectus is signed through duly authorized agent of directors. [Rule 11]

Action for improper use or description as foreign company

If any person or persons trade or carry on business in any manner under any name or title or description as a foreign company registered under the Act or the rules made thereunder, that person or each of those persons shall, unless duly registered as foreign company under the Act and rules made thereunder, shall be liable for investigation under section 210 of the Act and action consequent upon that investigation shall be taken against that person. [Rule 12]