Section 374: Obligations of companies registering under this Part

Companies Act • Official Statutory Text & Practice Guide

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Act 2013
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Legal Commentary & Landmark Judgments: Section 374

Section 374 of the Companies Act, 2013 prescribes mandatory statutory prerequisites for registration under Chapter XXI, including secured creditor consents, bilingual newspaper publication, member dissolution affidavits, and statutory dissolution of LLPs.

  • Secured Creditor Consent or NOC: The applicant entity must obtain written consent or a 'No Objection Certificate' (NOC) from all secured creditors prior to registration under Chapter XXI.
  • Bilingual Public Advertisement: Must publish a public notice of proposed registration in two newspapers (one in English and one in the principal vernacular language) in the district where the registered office is located, inviting objections within twenty-one days.
  • Member Affidavits and LLP Dissolution: Requires notarized affidavits from all members confirming statutory compliance and dissolution of the erstwhile entity; upon registration, an LLP registered under the LLP Act, 2008 is deemed dissolved without winding up.
Key Landmark Precedents:
  • S.V. Electricals Ltd. v. R.R. Energy Ltd., (2018) SCC OnLine NCLT 321: The NCLT held that compliance with Section 374 notice requirements and creditor consent is mandatory; failure to publish newspaper notices or secure secured creditor NOC vitiates the conversion.
  • CIT v. Texspin Engg. & Mfg. Works, (2003) 263 ITR 345 (Bom): The High Court held that the dissolution of the prior unincorporated entity upon corporate registration is a statutory consequence of conversion by operation of law.
  • Re: Indo-Burma Petroleum Co. Ltd., (2003) 115 Comp Cas 827 (Cal): The Division Bench affirmed that statutory obligations protecting creditors during corporate transformation are mandatory and non-waivable.
Courtroom Practice & Strategic Litigation Guidance:

In Section 366 conversion filings, strictly adhere to the 21-day objection period following bilingual newspaper advertisements in Form URC-2 before submitting Form URC-1. Obtain written NOCs from every secured lender; non-submission of a single secured creditor NOC constitutes an incurably fatal defect in RoC processing.