Vacation of office of Director

XYZ is a public limited company having six directors. Three Directors have obtained DIN and DIN-3 has been filed with ROC in the year 2007. There is no communication from the balance three directors for the past two years and their whereabouts is not traceable. Due to the above the company could not file DIN-3 with ROC. Further while filing Form 20B (Annual Return) the company is required to give the details of all its six directors. Since DIN of the three absonding directors are not available the company cannot fill up the details in Form 20B. If the situation is allowed to continue the company cannot file the Annual Return with ROC leading to violation.

MCA or the department has not come out with a proper solution for filing Form 32 for absconding directors.

To overcome the above said problem I have devised a plan of action.

Since the three absonding directors have not attended any board meetings from April 2008 onwards they shall vacate their office automatically as per the provisions of Section 283(1)(g) of the Act.

The Board of Directors at their meeting held on 01.09.2009 (accounts meeting) will take on record the vacation of office by these directors. It will be properly recorded in the minutes.

The company has to file Form 32 with ROC within 30 days (on or before 30.09.2009). In the absence of DIN the company cannot file Form 32.

The Company will prepare a detailed letter addressed to ROC. The company will also prepare a manual Form 32 for the vacating three directors. Both the letter and Form 32 will be signed by a Director.

The above said letter and Form 32 will be scanned and attached with Form 20B (Annual Return form). However details of continuing directors who has obtained DIN will be duly filled in Form 20B. Form 20B will be uploaded to MCA portal and fees will be remitted.

As regards fees for Form 32 the company will make the payment under Miscellaneous Payment route, generate the challan and keep the same on record.

Form 20B will be approved under Straight Through Process mode and there will not be any query for the time being from ROC.

However there is a likely chance that the company may get a notice from ROC in future. At that time the company will submit the details to ROC. The company wil also highlight to ROC that it has attached a detailed letter alongwith Form 32 with Form 20B. Fees for Form 32 has also been remitted to the government under miscellaneous payment option.

Valued Members are hereby requested to inform me whether the action plan is workable. Whether any other violation will crop up in future.

(Note: I understand from some of my friends that ROC, Pondichery is allowing the companies to file Form 32 for directors who do not possess DIN and who have resigned or absonding. The companies concerned have to manually prepare a Form 32 sign it and scan the same. The duly signed manual Form 32 has to be attached with Form 66 and filed online. ROC, Pondichery is approving the Form 66)

with regards

Muralidharan