Repugnancy and Section 6 of the Companies Act, 2013: A Practical Guide for MOA, AOA, Agreements and Resolutions

1. Concept in Brief

Section 6 of the Companies Act, 2013 establishes that the Companies Act prevails over a company’s own constitutional and contractual framework. Where a provision of the Memorandum of Association (MOA), Articles of Association (AOA), any agreement executed by the company, or any resolution passed by the company is inconsistent with the Act, that particular inconsistent portion becomes void under Section 6(b).

However, repugnancy is not triggered merely because a company document is more detailed, more restrictive, or adds requirements on a subject that the Act also covers. The clash arises only when it is impossible to follow both the Act and the corporate document at the same time. In such a situation:

  • Only the conflicting part of the clause is treated as void, and
  • The remaining part of that clause, and the rest of the document, continues to operate.

The working rule is therefore: identify whether a company-level provision contradicts a mandatory command of the Act, or simply supplements it. Only the former attracts Section 6(b).

2. Statutory Framework

2.1 Core Provisions of the Companies Act, 2013

The key provisions relevant to repugnancy are:

  • Section 6(a)
    Confers overriding status on the Companies Act, 2013 in relation to:

    • MOA
    • AOA
    • Any agreement executed by the company
    • Any resolution passed in general meeting or by the Board

    This superiority applies regardless of whether such MOA/AOA/agreements/resolutions come into existence before or after the commencement of the 2013 Act.

  • Section 6(b)
    Prescribes the legal effect of that overriding status. It provides that any provision in:

    • the MOA,
    • the AOA,
    • an agreement, or
    • a resolution

    shall, to the extent it is repugnant to the provisions of the Companies Act, 2013, become or be void.

  • Section 2(5)
    Defines “Articles” as the Articles of Association of a company, in their original or subsequently altered form.

  • Section 2(56)
    Defines “Memorandum” as the Memorandum of Association, again including all alterations made over time.

  • Section 10
    Treats the MOA and AOA as having the force of a contract:

    • between the company and its members, and
    • among the members inter se,

    but subject expressly to the phrase “subject to the provisions of this Act”, mirroring the override created in Section 6.

Together, these provisions make it clear that the MOA and AOA enjoy contractual force only within the boundaries drawn by the Act. Where the Act has taken a position that cannot be reconciled with a company provision, the Act prevails.

3. Text of Section 6 (Relevant Extract)

Section 6 provides as follows:

“Save as otherwise expressly provided in this Act –
(a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors…; and
(b) any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be.”

The important elements are:

  • “notwithstanding anything to the contrary” – confirms the overriding character of the Act;
  • “to the extent to which it is repugnant” – emphasises partial invalidity, not an automatic collapse of the entire document.

4. What Counts as “Repugnant”?

4.1 Not Every Overlap Is a Conflict

Section 6 is not designed to strike down every MOA/AOA/agreement/resolution that deals with a subject already addressed in the Companies Act. It is engaged only when the provision in question cannot co-exist with the statutory rule.

A practical classification helps:

(A) Provisions that Supplement the Act

These provisions either:

  • cover areas where the Act is silent, or
  • operate within an enabling framework where the Act deliberately leaves room to the company, often signalled by phrases such as “unless the articles otherwise provide”.

Examples of supplementary provisions:

  • Fixing a quorum higher than the minimum prescribed by the Act;
  • Requiring additional approvals (e.g., Board or shareholder nods) beyond what the Act itself insists on;
  • For a private company, inserting transfer restrictions within the AOA where the Act permits such regulation.

In such cases, the MOA/AOA or agreement is not attempting to override the Act, but to fill gaps or tighten procedures within the liberty that the Act gives.