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Appointment of director in case of death

16 June 2016

THERE ARE TWO DIRECTORS IN PRIVATE LIMITED COMPANY. ONE HAS DIED ON 24.04.2016. THE PERSON WHO WANTS TO BECOME DIRECTOR IN PLACE OF EXPIRED DIRECTOR ACQUIRED DIN ON 15.06.2016.NOW WHAT IS TO BE DONE IN THIS CASE

WHAT ROC COMPLIANCE HAVE TO BE FOLLOWED

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12 Replies

Harshit Kabra (INVESTOR) (Student CA final) (1113 Points)
Replied 16 June 2016

hllo mr. nitin ji,

In case of death of director it is termed as casual vacancy and its to be compulsirly filled by BOD at the board meeting.,and in his place the new director appointed shall hold the office upto the date which the director appointed in whom place would have held office if the positions not vacated.

Board Resolution for cessation of Director who is died.,as per Companies Act, 2013, Form DIR-12 is to be filed in case of resignation, cessation, or death of director.

After filing DIR – 12 you must need to file DIR-11 to intimate ROC for resignation from a particular company.

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Rajnesh Gautam (Company Secretary) (62 Points)
Replied 16 June 2016

Mr. Harshit i would like to make some clarification on post.

1. first provisions of casual vacancy are applicable on Public company not on private company,

2. even public company are not required to fill the casual vacancy if statutory requirement of minimum number of directors are satisfied.

3. since it is private company hence they need to file only DIR-12

4. DIN-11 is filled in case of resignation only not in case of death.

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Rajnesh Gautam (Company Secretary) (62 Points)
Replied 16 June 2016

please refer section 161(4) & 168 of Companies Act, 2013

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Jatin Bajaj (CS) (2930 Points)
Replied 19 June 2016

Agreed with the Respected Member. Section 161(4), which talks about casual vaccancy is not applicable on private Limited Company. and to comply with the minimum requirement of 2 Directors, Company may appoint Additional Director in Board Meeting and can File DIR 12 within 30 days of appointment as additional Directors are counted in total number of Directors

CA Nitin Utwani (CA) (42 Points)
Replied 24 June 2016

BUT ONE OF THE DIRECTOR GOT EXPIRED IN THE MONTH OF APRIL. AND THE PERSON WHO IS GOING TO BE APPOINTED IN PLACE OF EXPIRED DIRECTOR GOT THE DIN NO. IN THE MONTH OF JUNE ONLY...

NOW WHAT IS TO BE DONE FIRST ADDITIONAL DIRECTOR IS TO BE APPOINTED...? OR EXPIRED DIRECTOR IS TO BE REMOVED FIRST BY FILING DIR-12????

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CS Arjun Rajagopal (B.com, ACS) (1056 Points)
Replied 25 June 2016

Originally posted by : CA Nitin Utwani
	BUT ONE OF THE DIRECTOR GOT EXPIRED IN THE MONTH OF APRIL. AND THE PERSON WHO IS GOING TO BE APPOINTED IN PLACE OF EXPIRED DIRECTOR GOT THE DIN NO. IN THE MONTH OF JUNE ONLY... NOW WHAT IS TO BE DONE FIRST ADDITIONAL DIRECTOR IS TO BE APPOINTED...? OR EXPIRED DIRECTOR IS TO BE REMOVED FIRST BY FILING DIR-12????

Practically it is advised to first appoint additional director by filing eform DIR-12. Then file cessation of director in eform DIR-12.

Pallavi (Chartered Accountant) (34 Points)
Replied 22 July 2016

Dear Jatin Bajaj Sir

How to appoint additional director in case when there is only one director/ shareholder

Charu Srivastava (Company Secretary) (4210 Points)
Replied 22 July 2016

Regulation 69 of the Schedule I of table F of the Companies Act says

The continuing directors may act notwithstanding any vacancy in the Board; but,if and so long as their number is reduced below the quorum fixed by the Act for a meeting of the Board, the continuing directors or director may act for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company, but for no other purpose. The continuing directors may act notwithstanding any vacancy in the Board; but, if and so long as their number is reduced below the quorum fixed by the Act for a meeting of the Board, the continuing directors or director may act for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company, but for no other purpose.

So in light of the above provisions , the continuing director can appoint director to conform the statutory limits only.

3 Like

Charu Srivastava (Company Secretary) (4210 Points)
Replied 22 July 2016

No other business can be transacted except appointment of another director. So appoint the director on 15.06.2016 and take note of the casual vacancy on the same Board Meeting and file the form DIR -12 separately for appointment first and death later.

The reason of my advising of filing of DIR -12 for cessation because MCA will not accept the form unless the new director is appointed to maintain the statutory limit of 2 directors.

other views are solicited

3 Like