Appointment of Additional director through backend process

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Kavita R (Querist)
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04 February 2022 Facts of the company:
1) ABC co. is private limited.
2) Litigation case is going one.
3) Two groups of shareholders are there .
4) Addtional director was appointed and was regularised by holding AGM and DIR-12 was filed for regularisation. But in agm by mistake the voting was done by show of hands instead of poll. so the resolution was not passed which was realised later on. Only two directors were there on board including the additional director appointed. And now we want to appoint another director . So can we appoint the additional director through backend process? can we appoint the same director ?
PLEASE REPLY URGENTLY

Aashok Kumar Sharma online

Aashok Kumar Sharma

(Expert)
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06 July 2024 In the scenario described:

1. **Appointment of Additional Director**: Since the resolution to regularize the appointment of the additional director was not passed due to the voting method issue (show of hands instead of poll), the appointment technically did not take effect. Therefore, you can appoint the same or a different additional director through the backend process (filing Form DIR-12) again.

2. **Backend Process**: The backend process refers to filing Form DIR-12 for appointing directors. This form can be used to appoint directors including additional directors. Ensure that the form is filled accurately and complies with all requirements under the Companies Act and regulations applicable to private limited companies.

3. **Considering Current Circumstances**: Given the ongoing litigation and the presence of two groups of shareholders, it’s crucial to follow proper procedures and maintain transparency. It might be beneficial to consult with a company secretary or legal advisor to ensure all actions are in compliance with corporate governance norms and legal requirements, especially regarding shareholder agreements and any court directives related to the ongoing litigation.

4. **Appointment Procedure**:
- Prepare and pass the resolution for appointment of the additional director in accordance with the Companies Act and your company’s Articles of Association.
- File Form DIR-12 promptly after passing the resolution to avoid delays in official recognition of the appointment.

5. **Resolution Format**: The resolution should clearly state the intention to appoint the additional director, mention the name of the director, and outline the terms of appointment. Ensure the resolution is passed correctly this time, possibly by conducting a poll to avoid any procedural errors.

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