07 March 2011
A (Global INC.)pvt ltd. company had two directors with minority shares each. ( less than 21%). the major share holder company ( Track Intl.)promotors have changed due to problems with buisness operations and do not wish to continue,in any terms whatsoever, with our company. The directors in global ( Two Directors) have a dispute since 2005-06 and no balance sheet have been filed after that. One Director has settled abroad and another one is absconding. The director is currently in india to regularise the company and file the relevant balance sheet and AR's . How can one director complete this task ? How can he appoint another director with the help of Track Intl. ? Since the first Director has not resigned, how can another Director be appointed and sign the balance sheet ? The notice for prosecution for non filing is recd. by the auditor, . In this case, how can the balance sheet in old dates be signed, filed and avoid prosecution. Please help. Both are pvt ltd companies. The director who was to close the company and is available has shares amounting 10.5 %. There are three share holders... director 10.5 % Available anonymous person 10.5% No support ( N.A.) Track Intl 89 % full support. ( Holding Co.) The director who is absconding has no shares....
Jayashree S Iyer
( Expert ) 04 March 2011 In the absence of resignation from the absconding director, the company can remove him by following the procedure specified in Section 284 of the Companies Act.
The Procedure for Removal of a Director is given below :
1) Special notice of a resolution to remove a director is to be served on the company by a member. 2) On receipt of the notice, the company shall send a copy thereof to the director. 3) If the director makes any representation the same shall be circulated to all members if it does not contain any defamatory matter. 4) The director shall also be heard at the meeting and then the resolution may be passed. (Ordinary Resolution) 5) The vacancy caused by such removal shall be filled by appointing another person in his place provided special notice of the intended appointment has also been given.
Resolution required is Ordinary. Since you and Track Intl have majority shares the resolution for removal of old director and appointment of a new director in his place can be passed without any difficulty.
Once this is done you can finalise your accounts and submit your returns.
As regards closing of the company, Easy Exit Scheme 2011 is open till 30th April 2011 which can be availed off provided there is consenses among all the shareholders. In the absence of consenses among the members the only option left to the company is to make an application for winding up which is an expensive and time consuming process.
Anjali Kapoor
( Author ) 04 March 2011 Thanks Jaya Ji,
I got the point, thank you for being so helpful and resourceful
How can the Durector which is left the Global can appoint another director, Do we have to take help from Track Intl ? One single director who is availabe can't appoint him... the members will isn't it ?
Who will sign he balance sheets of 2005-06, 2006-07... 2009-10. What papers may be required for appointment ? Also, is there any problem if the DIN is obtained for the new director today and the Director is appointed in the back date and he signs all the balance sheet....
08 March 2011
One single director for the purpose of filling the casual vacancy can hold the meeting and appoint another director in his place.
However in your case it's removal and then appointment of a director. Hence shareholders meeting (EGM) is to be held and resolution passed for removal of the absconding director and then appointment of a new director in his place. Hence you have to take the help of majority shareholder Track Intl.
For appointment of director you need to have his DIN number and the consent letter. You need to file Form 32 with ROC.
If you are obtaining DIN for the Director only now, even though his appointment was effective 2006, it's violation of Section 266B. However the appointment would be valid and the company would be required to file DIN 3 after obtaining the DIN.
Further since his appointment is from 2006 onwards he can sign all the previous year accounts as well.
CAclubindia
