13 December 2010
Dear Expert, One of the director of a Pvt Ltd company having two directors died on 16.10.2010. Now company wants to fill casual vacancy caused due to death of one director. Proposed director has taken his DIN (DIN approved in Nov-10) and now company wants to do the removal and appointment procedure with ROC. My query is which procedure to follow: first removal of deceased director and appointment of new director in his place OR appoint new director first and then remove deceased director?
13 December 2010
For a private company min no. of director is 2.
So if there were 2 dir including the deceased dir then first appoint a director from back date i.e. before the date of death and file form 32 for appointment.
After approval of this form 32 for appointment file second form 32 for vacation of office due to the death of one of the director.
No need to follow removal procedure as death in itself creates vacation in office.
In Case the director of the company is less than two or the no. of director fix for the quorum, then the remaining director (continuing director or directors) may act for the purpose of increasing the no. of directors to that fixed for the quorum or summoning a general meeting of the company, but no for other purpose.
Please read Regulation 75 of Table A of Schedule I of the Companies Act, 1956.
If your company is limited by shares and has drafted your Articles in accordance with Table A of Schedule I to the Companies Act, 1956 then as per Regualtion 75 of the said Table, in case the number of Directors fixed for requiste quroum is not available, then also the remaining Director can concene a Board Meeting and appoint a Director for the purpose or for summoning a General Meeting for appointment of a Director in case of a Public Company.
Hence, even after the death of the Director, you can file Form 32 for cessation of Office and the remaining one Director can convene a Board Meeting and appoint a Director and Form 32 can be filed within 30 days from the date of appointment. No need to go for the appointment in the back date and before the death of the Director. But consult you Articles first so as ascertain that the Articles contain such enabling clause....which enables the remaining Director to convene a Board Meeting for the appointment of such Director even if their is no quorum....
14 December 2010
Though Udit is right and the Department has clarified that for the purpose of appointment of director when the number is reduced below quorum, the remaining director (even 1) shall form a quorum for the limited purpose of appointing a director. However MCA website doesn't allow this. If you file Form 32 for exit, only one director will be left on board and form 32 doesn't get uploaded.
So in practice first the induction of the director is filed before the exit.
CAclubindia
