05 January 2013
Respected All, I want to share following practical problem with all of you.
Facts :
Board of directors of a company appointed an additional director on 26.09.2012 in term of power conferred on them by the article of association read with section 260 of the Companies Act 1956.But intimation of such appointment was given to ROC on 20.10.2012 by filing Form 32. First AGM of the company was held on 28.09.2012.. Date of Notice of such AGM was 27.08.2012. Notice of AGM was containing only following Agenda for discussion :
1) To consider and adopt the financial statement.
2) To consider the re appointment of statutory auditor. By mistake nothing was mentioned about the re-appointment of above said additional director. Annual filing form has already been filed with ROC. As per Section 260 of the Companies Act 1956, Additional Director shall hold office only upto the date of next AGM of the company.
In view of the above said discussion, above said additional director has automatically vacated their office ,by operation of law, as additional director of the company on 28.09.2012. Now i want your advice on following queries :
1) Is it necessary for the company to intimate to ROC about vacation of office of additional director by filing form 32.
2) if company want to re appoint said additional director w.e.f. 01.10.2012 then shall we have to file two Form 32 (one for vacation of office and another of re appointment of said additional director.
3) Since the agenda in notice of AGM does not contain any business relating to reappointment of said additional director. can we skip to intimate to ROC about vacation and re appointment of director . Since Still the name of said director is showing as additional director on MCA portal in the list of company's director. and can re-appoint them in next annual general meeting to be held after 31.03.2013.
1. Yes, you will file Form-32 for autometic resignation of aditional director under section 260 with ROC. 2. Call a Board Meeting after AGM and appoint such person again as additional director for further period as you mentioned. 3. File Form-32 again for appointment of AD with ROC.
05 January 2013
Procedure for Regularisation of Additional Directors.
1. Call a Board Meeting for proposal of regularization of director 2. Hold a Board Meeting and call general meeting. 3. Hold a General Meeting for passing of resolution under section 257 to regularize the additional director. 4. File Form-32, with ROC, of change in position of director attach certified copy of shareholders meeting. 5. Take entry in Minutes.
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