173(2)applicability&director appointment in mid of the year

for point no. 1 yes it is mandatory to file explanatory statement along with Certified True copy of Resolution, it is the compulsory attachment of Form 2

For point no 2 Person can be appointed as a director in General Meeting until and uless the restrition is not mentioned in AOA 

Hi

A. If you are passing any item as special business on General Meeting then it is required to comply section 173 (2) of the Companies Act, 1956. In addition, Form 23 also demand a mandatory attachment of explanatory statement, in that case you attached following attachment in Form-23:

1. Notice along with explanatory statement

2. Certified copy of shareholder resolution.

B. You are free to appoint during mid year a person directly as Director of the company at EGM and it is a best practice to appoint a director at general meeting. In such appointment you only file one Form-32 with ROC and your director is appointed. No need to regularize such director in next general meeting and file again Form-32.

YES I AGREE

REGARDS

Agree with the observation of Ajay Sir.

Thanks Neha mam..........

Thank u for the expert comments.

Just wanted wanted to confirm as the appointment is not in place of retiring directors (one of the exceptions to sec 173) is it so that such appoinment will have to made through Special reolution???

Thanks in advance

Regards

Shivangi

Hi Agreed with Ms. Neha, you appoint a director in general meeting by passing ordinary resolution.

In filing form 32 for appointment of full time director in EGM there is a bit confusion regarding category column which has three options promoter, independent and professional .kindly guide regarding this query and also whether executive dir col will be selected or non-exec dir col in the mentioned caes.

Thanks in advance

Regards

Hi

It is depend on whether he is also member of the company or professional or an independ person to whom you are introducing in Board.

1. If he is relative of promoters or holding shares of company  then you mention him as promoter group or,

2. If he is professional then you mention him as professional category, i will also suggest you to give him a professional category.

3. In private company , generally Independent Director category will not apply so i will suggest you to ignore it.

B. In category of executive or not it depend on your management , whether they provide any remuneration to proposed director or not if not then you mention the category. non executive.

Regards

Thank u so much Ajay sir for the guidance.New  Directors are not related to old ones hence i think i m left with only the professional category to choose with executive col. 

Regards

Hi

Good, and you also update your self on the said matter.

Regards

For private limited companies (closely held) as far as category is concerned we can not choose INDEPENDENT DIRECTOR.

Even professional can not be chosen as category unless and untill director possess some professional and technical qualification for being appointed as such. Professional directors are appointed on the board by the companies for taking advantage of their professional expertise in relevant functional area. Hence we can not select PROFESSIOANAL CATEGORY also.

Hence in case our director is neither INDEPENDENT nor PROFESSIONAL, he is certainly going to be promoter.

YOU MUSH SELECT THE CATEGORY OF DIRECTOR AS PROMOTER BECAUSE OF THE FOLLOWING REASON :

As term promoter is not defined anywhere in the Companies Act, 1956. It is also equally true that Promoter is not necessary a person who takes part in flotation of company. Promoter is defined in the listing agreement for listed companies only. Therefore for private limited and unlisted public cos.  we cant verebit the defination as mentioned in the listing agreement. In nutshell, we can not restrict promoter as the one who is taking part in formation of company.



Thanks.