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Additional director included in total number for sec 152?

Yashodhan Goenka (Proprietor & Pursuing CA Final) (49 Points)

05 April 2018

Hello, this is urgent! Preppring for May 18 CA Final

If a company has appointed 12 directors out of which 8 are rotational (2/3rd) - it wants to appoint 3 More additional directors u/s 161(1) - Does compliance of Sec 152(6) have to be checked?

Are Additional directors counted towards Total number of Directors u/s 161(1)??

So will the Co. need to have 15*2/3 = 10 Rotational Directors? Or can the 3 Additonal be appointed without giving any reference to Sec 152(6)?

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16 Replies

Divakar (Student CA Final ) (11857 Points)
Replied 05 April 2018

An additional director holds office upto the next AGM. i. E he doesn't retire at the next AGM... So he is not a retiring director... Explanation to section 152(7)......and as per regulation 66 of Table F, the no of directors and additional directors shall not exceed the maximum strength fixed for the board by articles

Yashodhan Goenka (Proprietor & Pursuing CA Final) (49 Points)
Replied 05 April 2018

I know that they are not retiring. But a certain author says that it will be counted towards calculating total. Others say it will not. Confusing

Divakar (Student CA Final ) (11857 Points)
Replied 05 April 2018

Already said as per explanation to section 152(7) it is counted.... Then where is confusion... I don't think so... Any confusion in that

Divakar (Student CA Final ) (11857 Points)
Replied 05 April 2018

Hey see my first answer carefully... I said its included in maximum limit total and rotation al director total... In ur example rotational directors is only 12 and not 15...bcz 3 additional director has to vacate his office... Bcz his term is only upto next AGM

Yashodhan Goenka (Proprietor & Pursuing CA Final) (49 Points)
Replied 07 April 2018

Okay you mean to say that additional director will not be counted for calculating rotation all directors right?

Divakar (Student CA Final ) (11857 Points)
Replied 07 April 2018

Yup... Bcz they automatically vacate their office in next AGM... Their term is only upto next AGM

2 Like

harsh patel (Student CA IPC / IPCC) (35 Points)
Replied 05 April 2018

total director includeadditional director

Ankita Panwar (59 Points)
Replied 30 January 2019

sir , does casual vacancy director liable to retire by rotation?

umesh vyas (B.Com., LL.B., A.C.S. ) (210 Points)
Replied 06 February 2019

Hi,

Section 161{4}

“(4) In the case of a public company, if the office of any director appointed by the company in general meeting is vacated before his term of office expires in the normal course, the resulting casual vacancy may, in default of and subject to any regulations in the articles of the company, be filled by the Board of Directors at a meeting of the Board:

Provided that any person so appointed shall hold office only up to the date up to which the director in whose place he is appointed would have held office if it had not been vacated.”

Therefore if the director appointed by way of filling casual vacancy is appointed in place of Original Director by whose casualty the vacancy is creates was liable to retire by rotation, the former is also liable to retire by rotation.

Ram Jangir (4 Points)
Replied 05 January 2020

Section 152(6)- Retirement of Director by Rotation say that" A person liable to retire by Rotation must be appointed by the Company in General Meeting i.e. appointed by the Member of the Company.

And as we know that Additional Director/s are appointed by Board and not by member.

Therefore it is crystal clear that Additional Director shall not be counted for Total No. Of Rotational Directors.

Ram Jangir (4 Points)
Replied 05 January 2020

Section 152(6)- Retirement of Director by Rotation say that" A person liable to retire by Rotation must be appointed by the Company in General Meeting i.e. appointed by the Member of the Company.

And as we know that Additional Director/s are appointed by Board and not by member.

Therefore it is crystal clear that Additional Director shall not be counted for Total No. Of Rotational Directors.

Avinash (CA Article) (22 Points)
Replied 11 May 2020

Tq Jangir...My query is In case Additional Director is not counted in total number of directors u/s 152(6).. What about Nominee Director will he be included in total?