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Appointment of director in a private company in accordance with the provisions of companies act, 2013

CS Mallika Gupta 
on 12 October 2016

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Relevant sections to be kept in mind while appointing a Director in a Private Company:-







Sr. No

Relevant Section/ Rule of Companies Act 2013

Particulars

1.        

Section 152

Appointment of Director

2.        

Rule 8 of the Companies (Appointment and Qualification of directors) Rules, 2014

Consent to Act as a Director.

3.        

Section 161

Appointment of Additional Director, alternate director, and nominee director

4.        

Section 164 of read with Rule 14 of the Companies (Appointment and Qualification of directors), Rules 2014

Disqualification for appointment of Director

5.        

Section 184

Disclosure of Interest by Director

6.        

Rule 18 of the Companies (Appointment and Qualification of directors), Rules 2014

Return containing particulars of directors and Key Managerial personnel.

7.        

Section 170

Register of Directors and Key Managerial Personnel and their shareholding

1. Section 152 of the Companies Act, 2013 - Appointment of Director

(1) Where no provision is made in the articles of a company for the appointment of the first director, the subscribers to the memorandum who are individuals shall be deemed to be the first directors of the company until the directors are duly appointed and in case of a One Person Company an individual being member shall be deemed to be its first director until the director or directors are duly appointed by the member in accordance with the provisions of this section.

(2) Save as otherwise expressly provided in this Act, every director shall be appointed by the company in general meeting.

(3) No person shall be appointed as a director of a company unless he has been allotted the Director Identification Number under section 154.

(4) Every person proposed to be appointed as a director by the company in general meeting or otherwise, shall furnish his Director Identification Number and a declaration that he is not disqualified to become a director under this Act.

(5) A person appointed as a director shall not act as a director unless he gives his consent to hold the office as director and such consent has been filed with the Registrar within thirty days of his appointment in such manner as may be prescribed:

Provided that in the case of appointment of an independent director in the general meeting, an explanatory statement for such appointment, annexed to the notice for the general meeting, shall include a statement that in the opinion of the Board, he fulfils the conditions specified in this Act for such an appointment.

Any appointment of a person as a Director is to be done in a general meeting; though if the person fails to get appointed in the General Meeting then he or she can be appointed as an Additional Director by the Board of Directors. (Reference given in Section 161(1) of the Companies Act 2013 which has been provided below in the Article)

The Section 152 of the Act describes the pre-requisites to become a Director of the Company. Any person who wants to join the Board is required to obtain a Director Identification Number i.e. DIN which is a unique number through which a Director is identified. Every individual who is to be appointed as the Director of the Company shall make an application electronically in Form DIR-3 to the Central Government along with the prescribed Fees.

The above section also states that whenever a person is appointed as a director then he or she should give their consent in writing which shall be filed with the registrar within 30 days of such appointment. Elaborate description is provided below

2. Rule 8 of the Companies (Appointment and Qualification of directors) Rules, 2014 - Consent to act as director.

Every person who has been appointed to hold the office of a director shall on or before the appointment furnish to the Company a consent in writing to act as such in Form DIR-2

Provided that the company shall, within 30 days of the appointment of a Director, file such consent with the Registrar in Form DIR-12 along with the fee as provided in the Companies (Registration of offices and fees) Rules, 2014.

The Above stated rule provides that every Director who is to be appointed should give their consent in writing so as to ensure that the person is willing to hold the position of a Director. The said consent is mandatorily to be filed with the Registrar of Companies informing him of the change in the signatory details of the Company in Form DIR-12 within 30 days of the said change.

3. Section 161 of the Companies Act, 2013 - Appointment of Additional Director, alternate director, and nominee director

(1) The articles of a company may confer on its Board of Directors the power to appoint any person, other than a person who fails to get appointed as a director in a general meeting, as an additional director at any time who shall hold office up to the date of the next annual general meeting or the last date on which the annual general meeting should have been held, whichever is earlier.

The section provides that if the company fails to appoint a director in the General Meeting, then the Board of Director can appoint any person as the Additional Director of the company who shall hold the office till the date of next AGM or the last date on which the annual general meeting should have been held whichever is earlier. Hence the Board of Directors have the power to appoint a person as the Additional Director and who must be regularized in the General meeting.

4. Section 164 of Companies Act, 2013- Disqualification for appointment of Director:

The Section 164 of the Companies Act 2013 states that in order to be eligible to be appointed as the Director of the Company the person should possess certain eligibility criteria. The Act prescribes minimum standards or qualification which the person in order to get appointed as the Director of the Company must have. Refer Section 164 for elaborate description of the Qualifications.

The section 164 is to be read with Rule 14 of the Companies (Appointment of Directors) Rules, 2014 which states that any person who is to be appointed as the Director of the Company shall in FormDIR-8 provide a detailed disclosure about his qualification under sub-section (2) of Section 164.

**Format for Form DIR-8 is provided below**

5. Section 184 of the Companies Act, 2013 - Disclosure of Interest by Director:

1. Every director shall at the first meeting of the Board in which he participates as a director and thereafter at the first meeting of the Board in every financial year or whenever there is any change in the disclosures already made, then at the first Board meeting held after such change, disclose his concern or interest in any company or companies or bodies corporate, firms, or other association of individuals which shall include the shareholding, in such manner as may be prescribed.

Thus whenever a person is appointed as a Director, then such a person should disclose his interest in other companies to the Company in which he is being appointed. Such Disclosure is to be given to the Company in form MBP-1 as specified in Rule 9 of the Companies (meetings of the Board and its powers) Rules, 2014.

6. Rule 18 of the Companies (Appointment and Qualification of directors), Rules 2014

A return containing the particulars of appointment of director or key managerial personnel and changes therein shall be filed with the registrar in Form DIR-12 along with such fees as may be provided in the Companies (Registration of offices and Fees) Rules, 2014 within 30 days of such appointment or change, as the case may be.

7. Section 170 of the Companies Act, 2013- Register of Directors and Key Managerial Personnel and their shareholding.

(1) Every company shall keep at its registered office a register containing such particulars of its directors and key managerial personnel as may be prescribed, which shall include the details of securities held by each of them in the company or its holding, subsidiary, subsidiary of company’s holding company or associate companies.

(2) A return containing such particulars and documents as may be prescribed, of the directors and the key managerial personnel shall be filed with the Registrar within thirty days from the appointment of every director and key managerial personnel, as the case may be, and within thirty days of any change taking place.

The said section refers to the Statutory Registers of the Company which should be updated with the details of newly appointed director and his shareholding, if any, within 30 days from the date of appointment. It is the duty of the Company secretary or any other person so authorized by the Board of Directors in case there is no Company Secretary to update the registers within the time stipulated under the Act.

BRIEF CHECKLIST OF THE DOCUMENTS REQUIRED WHILE APPOINTMENT OF A DIRECTOR:-

1. Board Resolution
2. Appointment Letter
3.  DIR-2
4. Copy of  PAN as Proof of Identity
5. Copy of Aadhar as Proof of Residence.
6. DIR-8 (Intimation regarding Disqualification)
7. Form MBP-1 (Interest of Director).

DRAFT RESOLUTION FOR APPOINTMENT OF DIRECTORS IN A BOARD MEETING:-

1.  APPOINTMENT OF ______________AS ADDITIONAL DIRECTOR:

“RESOLVED THAT pursuant to Section 161 of the Companies Act, 2013 and other applicable provisions, if any, of the Companies Act, 2013 read with rules made there under (including its statutory modification or re-enactment thereof), ______________ be and is hereby appointed as Additional Director on the Board of Directors of the Company w.e.f. _________________, who shall hold office upto the date of the ensuing Annual General Meeting of the Company.”

“RESOLVED FURTHER THAT for the purpose of giving effect to this resolution, ________________ (DIN: __________), Director of the Company be and is hereby authorized, on behalf of the Company, to do all acts, deeds, matters and things as deem necessary, proper or desirable and to sign and execute all necessary documents, applications and return for the purpose of giving effect to this resolution along with filing of necessary E-form(s) with concerned Registrar of Companies.”

2. TAKING NOTE OF DISCLOSURE OF INTEREST BY MR. ____________ AS DIRECTOR UNDER SECTION 184:-

The Board took note of the general notice of disclosure received from _____________, pursuant to Section 184 of the Companies Act, 2013. The Board passed the following resolution:-

"RESOLVED THAT pursuant to the provisions of Section 184 (1) of the Companies Act 2013, read with rule 9 (1) of the Companies (Meetings of Board and its Powers) Rules, 2014, the general notice of disclosure of interest or concern in Form MBP -1 received from ________________, as placed before the Board, be and is hereby taken on record”.

“RESOLVED FURTHER THAT for the purpose of giving effect to this resolution, ____________ (DIN: __________), Director of the Company be and is hereby authorized, on behalf of the Company, to do all acts, deeds, matters and things as deem necessary, proper or desirable and to sign and execute all necessary documents, applications and return for the purpose of giving effect to this resolution along with filing of necessary E-form(s) with concerned Registrar of Companies, if required.”

DRAFT RESOLUTION FOR REGULARISATION OF DIRECTORS IN A GENERAL MEETING:-

“RESOLVEDTHAT Mr. ___________(DIN______), who was appointed as an Additional Director with effect from _____________ on the Board of the Company in terms of Section 161 of the Companies Act, 2013 and other applicable provisions, if any, of the Companies Act, 2013 read with rules made there under (including its statutory modification or re-enactment thereof),  who holds office upto the date of this Annual General Meeting, be and is hereby appointed as a Director of the Company.”

Form DIR-2

Consent to act as a director of ______________________Limited

[Pursuant to section 152(5) and rule 8 of Companies (Appointment and Qualification of Directors) Rules, 2014]

To,

The Board of Directors,

 ---------------------(Name of the company)
 -------------------- (Address of the company)

Subject: Consent to act as a director.

I ………………………, hereby give my consent to act as director of ……….. (name of the company), pursuant to sub-section (5) of section 152 of the Companies Act, 2013 and certify that I am not disqualified to become a director under the Companies Act, 2013.

1. Director Identification Number (DIN):
2. Name (in full):
3. Father’s Name (in full):
4. Address:
5. E-mail id:
6. Mobile no.:
7. Income-tax PAN. :
8. Occupation:
9. Date of birth:
10. Nationality:
11. No. of companies in which I am already a Director and out of such companies the names of the companies in which I am a Managing Director, Chief Executive Officer, Whole time Director, Secretary, Chief Financial Officer, Manager. .
______________
12. Particulars of membership No. and Certificate of practice No. if the applicant is a member of any professional Institute. ____________Specifically state NIL if none.

DECLARATION

I declare that I have not been convicted of any offence in connection with the promotion, formation or management of any company or LLP and have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law in the last five years. I further declare that if appointed my total Directorship in all the companies shall not exceed the prescribed number of companies in which a person can be appointed as a Director.


Date:                         Signature:…………………….
Place:                        Designation:………………….

Attachments:

1. Proof of identity;
2. Proof of residence;

FORM 'DIR-8'

Intimation by Director

[Pursuant to Section 164(2) and rule 14(1) of Companies (Appointment and Qualification of Directors) Rules, 2014]

Registration No. of Company :
Nominal Capital :
Paid-up Capital   :
Name of Company :
Address of its Registered Office:

To

The Board of Directors of ________

I, _________Wife of ____________ resident of ______________, Director in the company hereby give notice that I am/was a director in the following companies during the last three years:-

S. No.

Name of the

Company

Date of

Appointment

Date of

Cessation

1

 

-

I further confirm that I have not incurred disqualification under section 164(2) of the Companies Act, 2013 in any of the above companies, in the previous financial year, and that I, at present, stand free from any disqualification from being a director.

Dated : 

Signature

(NAME)

(Director)
DIN-________

ON THE LETTER HEAD  OF THE COMPANY

APPOINTMENT LETTER

Dated: ____________

To,                                                                                                          
Mr. __________,
_______________(Address of the Director)

Subject: - Appointment of Mr. _____________ as Additional Director

Dear Sir,

We wish to inform you that after considering the quality of your experience and your technical expertise in the related field, you have been appointed as the Additional Director/ Director on the Board of the company vide resolution passed at the meeting of Board of Directors held today on _________

Therefore, now, you will serve the company as the Additional Director of the company.

Thanking You,

For ________________

(Name of the Director)
(Designation)

DIN:________


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