Section 386 of Companies Act, 2013 – Interpretation

SECTION 386. INTERPRETATION

[Effective from 12th September, 2013, except clause (a)]

[Clause (a) is effective from 1st April, 2014]

For the purposes of the foregoing provisions of this Chapter,—

(a)   the expression “certified” means certified in the prescribed manner to be a true copy or a correct translation;

(b)   the expression “director”, in relation to a foreign company, includes any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act; and

(c)   the expression “place of business” includes a share transfer or registration office.

Applicable Rules

Companies (Registration of Foreign Companies) Rules, 2014

[Effective from 1st April, 2014]

Rule 9. 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 company is incorporated in a country outside the Commonwealth—

(a)           the copy aforesaid shall be certified as a true copy by—

(i)            an official of the Government to whose custody the original is situated; or

(ii)           a Notary (Public) of such Country; or

(iii)         an officer of the company.

(b)           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.

(c)           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 company is incorporated in any part of the Commonwealth, the copy of the document shall be certified as a true copy by—

(a)           an official of the Government to whose custody the original of the document is committed; or

(b)           a Notary (Public) in that part of the Commonwealth; or

(c)           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 Company is incorporated in a country falling outside the Commonwealth, but a party to the Hague Apostille Convention, 1961—

(a)           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;

(b)           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;

(c)           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 10. Authentication of translated documents.—(1) 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.

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

(a)           the official having custody of the original; or

(b)           a Notary (Public) of the country (or part of the country) where the company is incorporated:

Provided that 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.

(3) Where such translation is made within India, it shall be authenticated by—

(a)           an advocate, attorney or pleader entitled to appear before any High Court; or

(b)           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.