Additional director included in total number for sec 152?

Co Act 2013 5157 views 16 replies

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)?

Replies (16)
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
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
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
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
Okay you mean to say that additional director will not be counted for calculating rotation all directors right?
Yup... Bcz they automatically vacate their office in next AGM... Their term is only upto next AGM
total director includeadditional director
sir , does casual vacancy director liable to retire by rotation?

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.

  

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.

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.

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?

As per sec 152(6) the term "total no. of directors"  shall not include Independent directors and nominee directors.

As per sec 152(6) the term "total no. of directors"  shall not include Independent directors and nominee directors.


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