Resolution by circulation U/s 289 of Companies Act 1956

This query is : Resolved

Pankaj jain (Querist)
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09 May 2011 Dear Friends,

Kindly let me know if a resolution by Circulation can be passed for appointment of one additional Director is possible , where there is only 2 Directors in the company , 1 is available in India and Another is in Foreign Country. Whereas the Quorum as per AOA is 2 Directors.

Regards,

Pankaj Jain

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Guest (Expert)

09 May 2011 Dear Pankaj,

Well ! It seems your company is Private Company, But am not sure whether your's is a subsidiary of a Public Company.

Section 262 is Applicable if urs a subsidiary of Public Company, then circular resolution cannot be carried on.

If the Appointment of Addl Director is because of a causal vacancy in board, Section 262 will be applicable (Public & its Subsidiaries)

Besides, if articles permit or its silent, the Board can appoint additional director by a circular resolution and make sure that the directors approve such resoln in next board meeting.

File Form 32 - with in 30 Days of Passing resoln ... to avoid levy of addl fee by Ministry.

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udit sharma

udit sharma (Expert)
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09 May 2011 In my opinion, since there are two Directors in your Company, it appears that urs is a Private Limited Company. In case of a Private Limited Company, if the Articles so permit, a person can be inducted as a Director on the BOD of the Company and there is no need to appoint him as an Additional Director.

God Bless

CS Udit Sharma

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Pankaj jain

Pankaj jain (Querist)
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09 May 2011 Dear Sriram,

This is a private company. There are two directors at present. 1 is present in India and amother is in Germany.

This is Private company hence Section 262 is not applicable in this , nither this is casual vacancy.

The additional director is required to be appointed and existing director required to be removed.

As per AOA there is authority to appoint additional director in board meeting.

In my Opinion , the Resolution by Circulation is the option but we have to give Draft to All directors then in India Not less than quorum ( 2 Directors as per AOA)and situation is that there is only i directors in India. My Questions is :-

Can we pass a resolution by circulation with in the provison of act.

Jayashree S Iyer

Jayashree S Iyer (Expert)
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10 May 2011 You are right. Since only one director is available in India, quorum requirements will not be fulfilled.

The other option, in such a situation, would be to call for a General Meeting and appoint the director in the General Meeting.