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Ultra vires appointment

Praveen Kanungo (Company Secretaries) (45 Points)

02 August 2016

How to cure an appointment of Director that has been made ultra vires i.e. beyond the number of directors permitted by Articles. How can the Company remove such a Director. A form has been filed for appointment and has been taken on record STP. How to reverse the effect of such appointment because it is a void ab initio appointment.

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6 Replies

(Guest)

it's void an initio as you said and also as per law that director is not be appointed if limit of maximum director of 15 otherwise specified in AOA is achieved .

still company try to appoint, than director appointed must be communicated with ROC within time period p

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(Guest)

continue....

time period prescribe to willingness as Director....

ROC Have all detail of Directors of company and its also tracking by DIN Number....

If ROC found company already having 15 Director than ROC reject the application of Director (which willing to become director No.16)

P C Agrawal (Registered independent director Past Chairman of Aurangabad Chapter of ICSI Practicing Company Secretary at Aurangabad) (8229 Points)
Replied 03 August 2016

If the number of directors is more than the number fixed under Articles but within the limit permitted by the Act, can the members not amend the articles for increasing the number and/or ratify the appointment by passing special resolution?

(Guest)

It's not only by just passing special resolution for increasing limit beyond 15 Director proscribe in act .

Company must be Alter the AOA U/s 14 of the Companies Act 2013 and new AOA after change submitted to the ROC .

Every alteration of the articles under this section and a copy of the order of the
Tribunal approving the alteration as per sub-section (1) shall be filed with the Registrar,
together with a printed copy of the altered articles, within a period of fifteen days in such
manner as may be prescribed, who shall register the same.

(Guest)

Any way ROC Have all details regarding all Directors & maximum number.

15 or specified in AOA beyond 15

If AOA include and give permission to increase beyond 15 and same AOA submitted initially with ROC than no problem arise for increasing beyond 15 ....

problem arise when AOA not support increase limit beyond 15 and company appointed 16 director without alter AOA first and submit same to ROC

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Praveen Kanungo (Company Secretaries) (45 Points)
Replied 05 August 2016

The case under question is that the AOA prescribes a max of 7 Directors. 2 Directors beyond 7 have already been appointed. A complaint to the ROC has also been sent requiring the ROC not to take on record the appointment, but form had been already approved in STP. Since the appointment is now void ab initio, is it open to the Board to file a form for removal and get it certified by a professional because MCA shows 9 Directors in View signatory details, which is wrong and ultra vires the Company. This is also affecting the Company adversely. Should a professional certify the form?