pls correct me if i m wrong, section 264(2) says A person other than (a)a director reappointed after retirement by rotation or immediately on the expiry of his term of office, or (b)an additional or alternate director, or a person filling a casual vacancy in the office of a director u/s 262, appointed as a director or reappointed as an additional or alternate director, immediately on the expiry of his term of office, or (c) a person named as director of the company under its articles as first registered, shall not act as a director of the co. unless he has within 30 days of his appointment signed and filed with registrar his consent in writing to act as such director.
pls i have confusion as this section says persons other than this (a)(b) &(c) are required to file their consent mandatory.. can u explain me in brief pls...
The consent you are talking about is Form No. 29 which is required to be filed with ROC with in 30 days after his/her appointment as per section 264(2). But as per my knowledge this Form is not in existence and no need to file consent with ROC in Form-29 which the section is talking.
So i will suggest you to take the consent in the format given in instruction kit of Form-32.
08 June 2012
What I understand is that authority to appoint lies with articles in case of first director and shareholders under section 255. Directors other than appointed under section 255 are appointed under section 260/262/313 by bod. Such appointment are temporary in nature. Forms are prescribed under therules framed under the Companies Act,1956.Till date section 264 is not repealed or deleted. Hence the provisions contained in the law will always prevail over the rule
See Section 264 says for filing before MCA 21 implementation but now when u r filing Form-32 it says whether u have taken consent of proposed appointee or not and when we click the same it means we have received the same from proposed director.
As per my understanding Verification I section of Form-32 represent the provision of section 264 of the Companies Act, 1956.
09 June 2012
if that is true then we should follow the section 264 in totallity which includes subsection 2 also which speaks otherwise. Therefore always follow sub section2 of 264 in case of the appointment of additional director and attach letter from professional that his consent is not required for the appointment of additional director. it is required only at the time of regularising the appointment of additional director u/s 255 of the cos. act 1956. there is lacuna in this form which need to be corrected. blindly following the contents of form 32 doesnot make us expert. filing of form is simply procedural aspect and not legal. we should be expert on legal side. automatically the procedural side will become effective.
You can try with this exemption given under section 264(2), if your CS says. What can i says, try to File Form-32 without consent of additional director.
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