How to appoint a new Director in an active company with all Directors are disqualified?
While
there are confusion prevailing over What next after
disqualification of Directors? MCA is yet to come out with any official
clarification on it. There are many companies which are affected due to the
steps taken by MCA. While, the action by MCA was very clear that all the
Directors who are disqualified will not be able to work as a Director and their
respective DIN will be disabled for a period of 5 years. Many senior
professionals have opined that such disqualification will not amount to
automatic vacation of office of directorship from other companies.
While we await further clarification from MCA on its stand on disqualification of Directors under Section 164 and disability of DIN. The notice at ROC office makes one thing clear, an Active Company (the one that is not struck off by ROC), can appoint new Director on their Board from Back end.
While generally appointing a Director in active
company is simple and can be given effect by filing eForm DIR-12 in general
case. Recently,
MCA struck off nearly 2.24 lakh companies for remaining inactive for a period
of two (2) years or more and around 3.09 lakh Directors disqualified who were
on the Board of Companies that have failed to file Financial Statements and/or
Annual Returns for a continuous period of three (3) financial years during
2013-14 to 2015-16.
Few active companies, which has done its filing on
time and are not struck off by MCA but left with no active Directors have
started facing an issue of running the Company and are unable to file any
documents with ROC. To solve the issue, MCA has come out with temporary solution
of Back-end (or of-line) filing of Forms along with relevant documents.
To appoint a Director, the Company will need to
submit, a request letter under
Section 167(3) of the Companies Act, 2013 signed by Shareholder/s of the Company
explaining the facts that all the Directors of the Company are disqualified and
requesting for insertion of atleast one Director through back end of the
e-portal.
Note: If shareholder is also a disqualified
director, then shareholder should sign in the capacity of Shareholder only and
not as a Director.
The above mentioned, letter should be submitted
with following mandatory attachment:
1. Appointment of the new Directors under section
167(3) of the Companies Act, 2013 by the Promoters/Shareholders.
2.
NOC from all disqualified directors from the
company for appointment of new Director/s
3.
Digitally filled in DIR-12 by the professional for
the new Director along with requisite fees and additional fees, if any, paid through
miscellaneous challan (under individual category) along with following
documents
a.
DIR - 2 Consent letter of New Director.
b.
Address and ID Proof of New Director.
c.
MBP-1 Notice of interest by the Director.
d.
DIR-8 limitation of Director are as per
section 164(2) Rule 4 of Companies (Appointment and Qualification of Directors)
Rules, 2014.
e.
DIN status of the New Director – Print out
f.
Print out of Names and CIN of the Company where new
Director is already a director
4.
Proof of shareholding of the Promoters/shareholders
(who appoints the new director) like share certificates or register of members
updated till the date of the request letter along with certification by
professional with membership number etc.,
5.
A Certificate from professional, stating that
he/she has verified the register of members and other connected records and
certify that the applicant/s is/are the majority shareholder/s.
6.
Copy of resolution for appointment of the new
Directors along with the copy of notice and explanatory statement.
Note: In new process, Affidavit from
Appointee Director is not required anymore. However, in case if same is already
availed by the Company, it is advisable to submit it with the above mentioned documents.
The above documents to be submitted
in hard copy along with soft copy in pen
drive only. Mumbai ROC has expressly clarified that the soft copies must be
submitted in Pen Drive only and DVD or CD will not be accepted.
Note: This circular applicable only for
active Companies where all Directors are disqualified under section 164(2)(a)
of the Companies Act, 2013.
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