Priya (AUDITOR) (40 Points)
21 April 2010Dear Ankur Sir,
My client is a small private limited company. CUrrently there are 3 directors. Now they wish to bring in a new person as director and appoint him as Managing director. Kindly guide me through the formalities regarding passing of resolutions in Board / EGM / AGM for appointment of new director, making hime MD and regularzing him as director, What are the Forms to be filed before ROC in this regard.
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 21 April 2010
Revert to you soon with a proper reply as right now a bit busy in a meeting.
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 21 April 2010
Dear Priya,
You problem is quite simple.
As before appointment as MD person must be a director so you can’t directly appoint him as MD as required by DCS Circular. So first you have to appoint him as an Additional Director u/s 260. After that in the same meeting by passing another board resolution you may appoint him as MD.
Detailed steps
1. First hold a board meeting and appoint the person as an Additional Director u/s 260.
2. File form-32 for the appointment of Additional Director u/s 260 within 30 days of passing board resolution.
3. Pass second board resolution in the same board meeting for the appointment of newly appointed Additional Director as Managing Director. Here only board resolution is enough as your company is a private company.
4. File second Form 32 with ROC for change in designation with within 30 days of passing board resolution for appointment as MD.
5. No GM resolution required as of now.
6. Regularization: Now observe carefully later on you have to regularize the person through passing a shareholders’ resolution in General Meeting. If you failed to do so MDship and directorship shall become void immediately.
One more thing it is not mandatory to regularize a person in AGM only. You may regularize him in any GM held after Board meeting above. As section 257 is all about GM.
After regularization you have to file another form-32. In this form-32 you have to select change in designation and further select “Managing Director”. To understand check instruction kit of form-32. This is one of the most important observation I have made. Don’t take it lightly.
I think this reply is good enough to solve your query. One humble request don’t call me sir as am pretty junior age wise and experience wise.
You may please revert if there is any doubt.
Best Regards
Priya
(AUDITOR)
(40 Points)
Replied 22 April 2010
Dear Mr. Ankur,
Thanku very much for your immediate reply.
Best Regards
Priya
(AUDITOR)
(40 Points)
Replied 22 April 2010
Dear Mr. Ankur,
In the above case, one of the current directors is resigning. Can we appoint the additional director and accept resignation of the old director in the same meeting?. Can a single Form 32 be filed for both appointment of additional director and resignation of old director? Kindly clarify.
Best Regards
Priya
(AUDITOR)
(40 Points)
Replied 22 April 2010
Dear Mr. Ankur,
In the above case, one of the current directors is resigning. Can we appoint the additional director and accept resignation of the old director in the same meeting?. Can a single Form 32 be filed for both appointment of additional director and resignation of old director? Kindly clarify.
Best Regards
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 22 April 2010
Yes appointment and resignation in 1 meeting is possible coz your company is a private company having 3 directors. You may also file single form 32.
Regards
Priya
(AUDITOR)
(40 Points)
Replied 22 April 2010
Dear Mr. ANkur,
In case the current 3 directors continue, and one of them resign s the post of managing director, what is the procedure?
Best Regards
Deepali Tandon
(Company Secretary)
(35 Points)
Replied 22 April 2010
Dear Priya,
Along with the procedure mentioned by Ankur, you must also file form 23 along with form 32 under section Sections192(4)(C);Appointment of Managing Director.
Best regards
Deepali Tandon
Priya
(AUDITOR)
(40 Points)
Replied 22 April 2010
Dear Deepali,
Thanks. In case the new MD is appointed in a EGM, should Form 23 be still filed.
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 22 April 2010
Yes Deepali Ji is correct.
You have to file form 23 for the appointment of MD in any kind of situation. There is no escape route. Check the list under section 192(4).
Further section 257 as mentioned in my first reply is not applicable to a private company so please check your article provision for regularisation of director. But as regularisation is necessary for every company simply pass an ordinary resolution in the GM for regularisation.
Thanks
Narendra Verma
(Senior Executive)
(116 Points)
Replied 05 May 2010
Is it mandatory to appoint a person as additional director instead of director in a Pvt. Ltd. Co.
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 05 May 2010
| Originally posted by : Narendra Verma | ||
 |
Is it mandatory to appoint a person as additional director instead of director in a Pvt. Ltd. Co. |
 |
No Narendra Ji. It is not mandatory.
You may simply appoint the person as a normal director. For that purpose pass an ordinary resolution in the general meeting and file form 32 within 30 days of passing general meeting resolution.
Revert if there is any doubt.
Narendra Verma
(Senior Executive)
(116 Points)
Replied 05 May 2010
Dear Ankur, I wsih to say, unless AOA provides, can i directly appt a person as director in board meeting in pvt. co. without passing OR in GM.
Deepali Tandon
(Company Secretary)
(35 Points)
Replied 05 May 2010
Dear Narendra,
You need to check the AoA of the Company. If AoA specifically provides that company canappoint the Director through BoD then only you can appoint the Director directly otherwise you have to appoint him as an additional director and then may be though BR passed in BM can appoint him as MD, subject to the provisions in AoA for appointing MD.
Regards
Deepali Tandon
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