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Director not re-appointed but still listed as director in ar

Dileep (Trader) (41 Points)

22 November 2011

The articles of a Pvt.Ltd company, stipulate that the first two dirctors appointed at time of company incorporation would remain the directors for life. Any other directors would enjoy a term of two years and would have to be re-aapointed at expiry of each term.

10 years ago, two 'additional directors' were appointed. However, subsequently they were never re-appointed in the AGM/EGM. Howvever in the RoC Annual Return, their names continues to be filed in list of Directors.

What are the rights of these two people? Are they Directors in the company? Can they file a complaint for not being invited to the meetings of the Board?

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2 Replies

Pavan Jain S (Chartered Accountant) (1575 Points)
Replied 22 November 2011

In case of additional directors, their term of office expires at the AGM immediately held after their appointment. They cease to hold office unless appointed as director in AGM. As far as retirement of director by rotation, there is no provision in Act in respect of the same as far as Pvt Ltd company is concerned. In Such Case, recourse has to be taken to MOA and AOA and the provisions of those documents shall apply. If the AOA stipulates that other directors retire after 2 years unless re appointed, they cease to be directors of the company at the expiry of said term.

Further, If their name is appearing as director in the annual return, I think that the same does not effect the aforesaid reply

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prathiba (company secretary) (259 Points)
Replied 22 November 2011

Hi Dileep,

a) If you wish to retain these directors in the board, you can regularise their appointment by filing form 32 for both appointment as Addl.Director and change in designation from addl.director to director on the date of AGM on which, they were likely to be appointed as directors. You have to use2 separate forms for showing appointment and resignation of the 2 Addl.Directors. However, you can use a single form 32 for both directors.Then, for every 2years in the said 10 year period, we can presume that the said 2 directors have been re-appointed at every respective AGM, though the notice and directors report may not have included this clause. The company would also have to file form din-3 as the din is mandatory if you're going to regularise the appointment of directors. The fee for form 32 would be around 10 times the basic filing fee .

2) If you do not want them to be on board and the directors were shown in the annual return by mistake, you can file the annual return for the latest AGM without the names of the said 2 directors. We will see if the ROC points out the same