According to section 318

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

15 July 2011 According to section 318 of Co. Act- No payment to director as compensation is allowed if winding up of company commences within 12 months of his cessation. How one can know at time of cessation of director that company will be wound up after 12 months..???

C A S.S.Agarwal, M.Com.,LL.B,

C A S.S.Agarwal, M.Com.,LL.B, (Expert)
Follow

15 July 2011 The relevant provisions of Section 318 are as under:-

318. Compensation for loss of office not permissible except to managing or whole-time directors or to directors who are managers

(1) Payment may be made by a company, except in the cases specified in sub-section (3), and subject to the limit specified in sub-section (4), to a managing director, or a director holding the office of manager or in the whole-time employment of the company, by way of compensation for loss of office, or as consideration for retirement from office, or in Connection with such loss or retirement.

(2) No such payment shall be made by the company to any other director.

(3) No payment shall be made to a managing or other director in pursuance of sub-section (1), in the following cases, namely:-

(a) where the director resigns his office in view of the reconstruction of the company, or of its amalgamation with any other body corporate or bodies corporate, and is appointed as the managing director, 1[***] 2[***] manager or other officer of the reconstructed company or of the body corporate resulting from the amalgamation;

(b) where the director resigns his office otherwise than on the reconstruction of the company or its amalgamation as aforesaid;

(c) where the office of the director is vacated by virtue of section 203, 3[***] or any of the clauses (a) to 4[(1)], of sub-section (1) of section 283;

(d) where the company is being wound up, whether by 5[order of the Tribunal] or voluntarily, provided the winding up was due to the negligence or default of the director;

(e) where the director has been guilty of fraud or breach of trust in relation to, or of gross negligence in or gross mismanagement of, the conduct of the affairs of the company or any subsidiary or holding company thereof;

(f) where the director has instigated, or has taken part directly or indirectly in bringing about, the termination of his office.

(4) Any payment made to a managing or other director in pursuance of sub-section (1) shall not exceed the remuneration which he would have earned if he had been in office for the unexpired residue of his term or for three years, whichever is shorter, calculated on the basis of the average remuneration actually earned by him during a period of three years immediately preceding the date on which he ceased to hold the office, or where he held that office for a lesser period than three years, during such period:

Provided that no such payment shall be made to the director in the event of the commencement of the winding up of the company, whether before, or at any time within twelve months after, the date on which he ceased to hold office, if the assets of the company on the winding up, after deducting the expenses thereof, are not sufficient to repay to the shareholders the share capital (including the premiums, if any,) contributed by them.

(5) Nothing in this section shall be deemed to prohibit the payment to a managing director, or a director holding the office of manager, of any remuneration for services rendered by him to the company in any other capacity.

CA Sumat Singhal

CA Sumat Singhal (Expert)
Follow

15 July 2011 At the time of resignation the compensation, if conditions are satisfied will be payable, and if within 12 months winding up proceedings are initiated then money payable to Director will be recovered as if money was held as trust, according to law.

Message likes : 1 times

Upgrade to CAclubindia Pro. Subscribe Now!