Resolution - Urgent

This query is : Resolved

Megha Gupta (Querist)
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04 March 2009 Hello everyone,

Please provide me a draft of resolution for removing a director and appointing another person in his place in a pvt. co. U/s 284 of Co's Act.

FYI, the removing director has provide resignation letter to the Board.

its urgent.

CS Arpita Rajpurohit

CS Arpita Rajpurohit (Expert)
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04 March 2009 complete details on sec. 284:

REMOVAL OF DIRECTOR: [SECTION 284]

1. Subject — Removal of Director
2. Passing Authority — General Meeting
3. Nature of the Resolution — Ordinary Resolution with special notice
4. Specimen Resolution(s)
A. Removal of Director
SPECIMEN 1
"RESOLVED THAT Mr. A be and is hereby removed from the office of director of the company."
Explanatory Statement
The Company has received a special notice pursuant to the provisions of section 284 of the Companies Act, 1956 from members holding 20% equity shares of the Company proposing for a resolution for removal of Shri A from the office of the director of the Company. The Company has also communicated the above said notice to Shri A for submission of his representation, if any.
Your directors submit the above said resolution for consideration and do not purport to support the same.
All the relevant documents are being placed at the Registered office of the Company for inspection till the date of the annual general meeting.
Except Shri A, none of the directors of the Company are concerned or interested in the resolution.
5. Guidelines
(1) As soon as the notice of the resolution is received, a copy thereof should be sent to the director concerned.
(2) If a representation is received from the director concerned, it should be circulated to the members in accordance with sub-section (4) of section 284.
(3) At the meeting, reasonable opportunity should be given to the director concerned and the movers of the resolution to present their cases.
[United Breweries Ltd v Ruttonjee & Co Ltd AIR 1959 Cal 550].
(4) A managing or other director may be removed by the Board by virtue of powers conferred upon it, independent of this section.
[Shanbha Shamsher (Major General) v Kamani Bros AIR 1959 Bom 201].
(5) In order to allege removal of the director, notice of removal must be proved.
[Coal Products Private Ltd v Ram Autar Jalan (1969) 39 Comp Cas 223 (DB)(Cal)].
(6) Any proposed resolution for removal of director is conditional upon observing formalities contemplated in this section.
[Thomas Logan Ltd v Davies 105 LT 409].
(7) It has been held that section 142 of the English Companies Act, 1948 (corresponding to section 190 of Indian Act) is not intended to supersede the requirements of section 140 of the English Act (corresponding to our section 188).
[Pedley v Inland Waterways Association Ltd (1977) 1 All ER 209 (Ch D)].
(8) The notice of removal, need not state the reasons for removal.
[LIC of India v Escorts Ltd (1986) 59 Comp Cas 548 (SC)].
(9) However, in the case of Queens Kuries & Loans P Ltd. v Sheena Jose [(1993) Comp Cas 820 (Ker)] the High Court has observed that special notice to be given under section 284 must disclose the ground on which the director is proposed to be removed, as the disclosure of the ground for removal is a matter of substance and not of form because the director concerned is entitled to make a representation against the removal.
(10) The casual vacancy caused by such removal may either be filled up in the meeting at which the director was removed or by the Board in pursuance of section 262 of the Act.
(11) The director who was removed cannot be reappointed as a director, by the Board of Directors in pursuance of section 262 of the Act.
(12) A director, so appointed, whether in the general meeting or by the Board, shall hold office until the date upto which his predecessor would have held office, if he had not been removed from the office as aforesaid.
6. Filing
e-Form 32 within 30 days.