June, 2018 | RISIKO Blog

Remedy available to Director who has resigned and the Company is not filing DIR-12 with ROC

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Author – CS Gurminder Dhami (Firm- Gurminder Dhami & Associates from New Delhi, IN).

The nitty-gritty involved while resignation from the post of Director of a Company, precautions to be taken while resigning have been discussed by the author is separate articles link of which have been provided above.

Now, despite of all the precautions taken there are chances that a Company is not filing the e-form DIR-12 with ROC.

This article focuses on remedies available with a resigning Director in case the Company is not filing e-form DIR-12 with ROC.

Remedies

The remedies given herein below are according to the author, put in a logical sequence and therefore it is advisable to exhaust the first remedy and even if still the issue persists then move on to the next available remedy.

Remedy 1 – File e-form DIR-11 with ROC & Send correspondence to the Company

In case the Company has not filed with ROC e-form DIR-12 intimating resignation within the stipulated time period of 30 days in Section 168 of Companies Act, 2013, the resigning Director should immediately proceed for filing e-form DIR-11, if not already filed.

Thereafter, the resigning Director may serve the Company and all its Directors with a reminder letter along with the copy of e-form DIR-11 filed with ROC.

(FORMAT of a sample reminder letter is placed at this weblink)

Remedy 2 – File complaint with ROC in e-form SCP (Serious Complaint Form)

That even after sending of reminder letter to the Company, the Company has not filed e-form DIR-12 with ROC, then the resigning Director should file e-form SCP (Serious Complaint Form) with ROC. The e-form SCP allows a resigning Director to file complaint against the Company who is not filing the resignation of Director.

The practical guide as to information required to be mentioned in the e-form SCP is as follows:-

Particulars of e-form SCP	Values
Details of the Complainant	Name, Address, Phone & e-mail id.
Details of the Company	Enter CIN to pre-fill details.
Nature of Complaint	Select the option “Cessation of director”
Status of Complainant	Select the option “Other”
Particulars of Resigning Director	Enter DIN & pre-fill, enter Designation, e-mail id, reasons of cessation and other remarks, if any.
Particulars of Complaint	Enter the details of the complaint being made in brief here along with other remarks, if any.
Attachments	1. ID Proof of Complainant. 2. Correspondence with Company regarding the resignation.

Here it is advisable to prepare a complaint letter and explain all the facts therein and attach all the relevant documents to substantiate the complaint. In this letter ROC should be requested to initiate appropriate actions against the Company (call information & documents u/s 206, direct to file e-form DIR-12 and also adjudicate penalty for the default u/s 454)

(FORMAT of a sample complain letter to be filed with ROC is placed at this weblink)

Thereafter, it is advisable to submit physical copies of all the above documents with form SCP and challan with ROC office, make representation and follow-up the matter with ROC so that the ROC takes action in this regard.

Situations which may arise while exercising Remedy No. 2 above described in the below picture :-

Remedy 3 – Send a legal notice to the Company

That while pursuing as per remedy 3 above, it comes to conclusion that the ROC will not take action against the Company (refer chart above) and if the Company has still not filed with ROC e-form DIR-12, then it is advisable that before instituting legal proceedings, a legal notice is sent to the Company and all its Directors.

It is always advisable to send a legal notice first before institution of legal proceedings because litigation is costly and lengthy affair.

Also sending a legal notice reduces the initial time taken at Court / Tribunal proceedings during admission of the case because –

– the respondent(s) are aware of the fact that a case maybe be filed against them, if they do not resolve the issue and thus may not ask for time from the Court / Tribunal to file their reply.

-The Court / Tribunal would also in this case, not be inclined to give the respondents lengthy time to file their reply.

(FORMAT of a sample legal notice to be sent to the Company is placed at the following weblink)

Remedy 4 – File Petition with Hon’ble NCLT

Despite all the tedious and rigours efforts if the Company still does not file e-form DIR-12, then the resigning Director should drag the Company to the appropriate legal forum to seek justice. Here the resigning Director should also demand for damages, litigation costs and compensation for harassment and mental agony.

The resigning Director in the petition under Section 168 and Section 170 read with Section 172 should, inter-alia, seek the following relief(s) :-

To direct the respondent(s) to file e-form DIR-12 with the office of Registrar of Companies.
To direct the respondent(s) to place the fact of petitioner(s) resignation on the website of the Company.
To direct the respondent(s) to intimate the fact of petitioner(s) resignation to all the bankers, vendors, dealers, agents and other stakeholders.
To take appropriate penal actions against the respondents for non compliance of Section 168 and Section 170 read with Section 172, for not filing the e-form DIR-12 within stipulated time period and for not making entries of particulars of resignation in register of Director.
To take appropriate penal actions against the respondents for non compliance of Section 189 for not making entries of particulars provided by the petitioner Director u/s 189(2) in the register of contracts or arrangements in which directors are interested.
To take appropriate penal actions against the respondents for non compliance of Section 134 read with Section 168, for not mentioning the fact of resignation of petitioner in the ensuing Board’s Report layed at the AGM.
To direct the respondents to revise the Board’s report in compliance with the provisions of the Companies Act, 2013 and also intimate all the shareholders about the fact of resignation of petitioner.
To take appropriate penal actions against the respondents for non compliance of Section 92, for not mentioning the fact of resignation of petitioner in the Annual Return (MGT-7) with ROC.
To direct the respondents to revise the Annual Return (MGT-7) and file the revised return with ROC.
To direct the respondents to pay a sum of Rs. ——————— /- as damages and harassment and Rs. —————————–/- towards the litigation costs.
To direct the respondents to keep the petitioner indemnified at all times, against all liabilities including cost of defending any proceedings, which might arise from any proceeding filed by any person against the petitioner, believing the petitioner to be a Director in the Company during the period starting from the date of actual resignation of the petitioner and till the date of filing of e-form DIR-12 by the Company.

Note of thanks to our Author – RiSiko would like to offer word of thanks to CS Gurminder Dhami (Firm- Gurminder Dhami & Associates from New Delhi, IN) for this valuable contributions on this critical topic. You can reach out to him for any Queries/suggestions or Questions at csgurminderdhami@gmail.com

Disclaimer: The entire contents of this article have been prepared on the basis of relevant provisions, judgements and information existing at the time of preparation. The observations of the author are personal view and the author does not take any responsibility of the same and this cannot be quoted without the written consent of the author.

Whether Resignation of Director is subject to Approval /Acceptance ?

adminJune 12, 2018June 12, 2018Leave a comment

Author – CS Gurminder Dhami (Firm- Gurminder Dhami & Associates from New Delhi, IN).

Under Companies Act, 1956 there was no provision governing the resignation tendered by a Director. Thus matters in dispute with respect to mandatory acceptance or approval of resignation were taken to Courts of law, wherein various pronouncements clarifying whether resignation by a Director is a unilateral or bilateral act have been made depending upon the facts & circumstances of the case.

Section 168(1) of the Companies Act, 2013

“168 (1) A director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place the fact of such resignation in the report of directors laid in the immediately following general meeting by the company.

Provided that a director shall (may)[1] also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed.

(2) The resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later.

Provided that the director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.”

Although, reading of Section 168(1) of the Companies Act, 2013 has made it clear that the resignation by a Director will be effective once served to the Company. But there have been arguments that a Director, who hold posts wherein he is responsible for managing affairs of the Company or assigned with certain roles & responsibilities cannot resign without the approval of the Board.

So, even after enactment of Companies Act, 2013, wherein Section 168(1) expressly provides that resignation by a Director is effective upon service of the same, Can there be situations where the resignation of a Director will be subject to acceptance or approval?

Murari Vs. State of Tamil Nadu (Madras HC) – [1976] 46 COMP. CAS. 613 (MAD.)

“………..If there is any provision in the articles giving right to a director to resign at any time, the resignation will take effect without any need for its acceptance by the board or the company in the general meeting. In the absence of any provision relating to resignation in the articles of association, it is well-settled that a resignation once made takes effect immediately when the intention to resign is made clear.” (Para 13 of the Judgement)

“Even in the absence of any express power to resign, it is submitted that, unless the articles are specially framed, a director may by notice to the company resign his directorship. Directors are merely agents of the company’…., and an agent may determine his agency” (Para 16 of Judgement)

“…………Where a director is elected or has contracted to act for a fixed period, his resignation, before the expiration of the period, may make him liable for damages for breach of his contract, unless the articles permit such resignation.” (Para 18 of the Judgement)

S. Lakshmana Pillai v. Registrar of Companies, Tamil Nadu- [1977] 47 COMP. CAS, 652 (MAD)

“……….Where a resignation states that it is to take effect on acceptance, or the articles so require, acceptance is necessary to end the tenure of office……..” (Para 16 of the Judgement)

“As regards the other contention of the ROC (first respondent) that the Resigning Director (petitioner) should have co-opted another director before he tendered his resignation, I see that there is no obligation under the Companies Act requiring a director, even if he is the only director, to co-opt another in case he intends to resign his office. After going through the provisions of the Act, I find there is nothing to show that such a co-option is a condition precedent for a director validly tendering his resignation. The power of co-option is only an enabling provision to co-opt so as to have the quorum for holding the meeting. There is no specific article in the articles of association of this company that it is imperative; on the part of the outgoing director to co-opt another director before he leaves his office. So this contention also fails.” (Para 28 of the Judgement)

Registrar of Companies, Orissa Vs. Orissa Paper Products Limited (Orissa HC)- [1988] 63 COMP CAS. 460 (ORI.)

“No doubt, resignation of Director does not require acceptance” (Para 12 of the Judgement)

J.S. Gambhir Vs. Millennium Health Institute & Diagnostics Pvt. Ltd. (Delhi HC)- [2014] 120 CLA 372 (Del.)

“…….A resignation by a director implies a relinquishment of his office. This is a unilateral act which unless the Articles of Association otherwise provide, is not contingent on the acceptance by the company. Directors act as agents of the company and are, thus, also entitled to terminate their agency. The act of resignation or relinquishment of the office would not require the consent of the company and, therefore, would become effective from the time when the intention to relinquish the office as a Director is communicated.” (Para 28 of the Judgement)

Rajan Sangameshwaran Vs. Saralaya Technologies Private Limited (Chennai CLB)- [2015] 127 CLA 216 (CLB)

“…………..On the legal aspect it is seen that there is no provision in the Act or in the Regulations contained in Table A regarding the acceptance of resignation of a director by the company, given in the articles of the company there is no requirement of acceptance of resignation by the company”

“………………The only objection of the company in taking note of the resignation of the petitioner and filing Form 32 with the concerned Registrar is that the company incurred certain liabilities at the behest of the petitioner during October 2010 and April 2012……………………..”

“…………….The resignation will not, however, relieve the petitioner from any liability if any, which he may have incurred while in office as alleged by the respondents. I am of the view that the company and its officers made default by not filing Form 32 intimating the resignation of the petitioner from the post of director……………..” (Para 5 of the Judgement)

Manav Kumar Agarwal Vs. Discovery Enterprises Private Limited & Ors.

Decided by CLB (Delhi CLB)- No. 51/614/CLB/2016, Dtd. 01/03/2016

“On reading this section, it is no doubt true that the Tribunal is vested with powers to direct the company to make good the default in case the company flouted any of the provisions of the Companies Act, 1956. It is a settled proposition of law, whenever company is to file any return, account or other documents, then it has to necessarily pass a Board Resolution to send such document to the Registrar of Companies. Unless the company has passed any resolution, accepting document or return, it can’t be said that the company has committed default in filing of form before the Registrar. Here, the case of the petitioner is that he has given resignation letter to the company on 18.01.2011 but it is not the case of the petitioner that the company passed a resolution and failed to file such resolution copy approving resignation of the petitioner as director before ROC. For there being no Board Resolution accepting the resignation, his mere giving resignation letter will not amount to resolution by the Board. It is needless to say that unless there is a Board Resolution by the company, it shall be presumed that the petitioner has been continuing as director of the company.” (Para 9 of the Judgement)

Set aside by Hon’ble Delhi High Court & Remitted back to NCLT (Delhi HC)- CO.A(SB) 17/2016 & Co. Appl. No.4814/2016; Dtd. 10/02/2017

“……the CLB was of the view that in absence of Board Resolution accepting the appellant’s resignation, his merely giving a letter of resignation would not suffice and in law, it would be presumed that the appellant continued as a director of the company” (Para 3 of the Judgement)

“……a resignation by a director is a unilateral act and unless otherwise specified in the Articles of Association of a company, a resignation would become effective from the date on which it is communicated” (Para 5 of the Judgement)

“The impugned order is consequently set aside. The matter is remitted back to the CLB (now NCLT) for determination of the underlying dispute de novo, in accordance with law, as expeditiously as possible.” (Para 7 of the Judgement)

Finally Decided by Hon’ble NCLT (Principal Bench, NCLT, Delhi)-CP-17/2016, Dtd. 18/05/2018

Upon remission of the matter to NCLT for determination of disputes de novo, NCLT Upheld the order passed by the Delhi High Court.

Analysis of the aforesaid Judgements

Upon analysis of the aforesaid judgments if read along with the Section 168, it can be concluded that under the following situations the Resignation by a Director will / will not be subject to approval or acceptance by the Board:-

S. No.

SITUATION

Whether Resignation will be subject to Approval of Board, if AOA ***

is silent

contains express provision for acceptance of Resignation [2]

Resignation Letter itself states that it is subject to acceptance by Board

YES

Resignation by Director before expiry of fixed tenure for which he was elected or contracted

NO[3]

YES2

Resignation by only remaining Director in the Company

NO[4]

YES

Where before the date of resigning by a Director, the Company has incurred many liabilities at the behest of the Director.

YES

Where Company did not pass a resolution to file the e-form 32 / DIR-12 with ROC for intimating the Resignation?

YES

*** According to various judicial pronouncements, the AOA of the Company can make the requirements of the Act more stringent. Therefore, the operation of Section 6 (Act to override MOA/AOA) will not effect the operation of a clause in the AOA that requires acceptance of resignation by a Director, which is contradictory to Section 168 and thus the AOA shall prevail over Section 168.

[1] Substituted by the Companies (Amendment) Act, 2017 and effective from 07/05/2018.

[3] This may make the Director liable for damages for breach of contract.

[4] If the AOA provides that single remaining Director shall not resign before co-opting another Director in his place, then the resignation letter by the Single remaining Director will not be treated as valid resignation, unless he has co-opted another Director.

Precautions to be taken while resigning from the directorship of a company

authortestJune 12, 2018June 12, 2018Leave a comment

Author – CS Gurminder Dhami (Firm- Gurminder Dhami & Associates from New Delhi, IN).

Although the provision w.r.t. resignation of a Director is one of the most lucid provision but in cases of disputes this is the provision in which most of the nitpicking is done. This article focuses on precautions to be taken by a Director while resigning from the Board of a Company.

TEXT OF SECTION 168 AND RULES MADE THEREUNDER

Provided that a director shall (MAY)[1] also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed.

(2) The resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later.

Provided that the director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure.”

The relevant text of Companies (Appointment & Qualification of Directors) Rules, 2014 is reproduced hereunder for ready reference:-

“15 The company shall within thirty days from the date of receipt of notice of resignation from a director, intimate the Registrar in Form DIR-12 and post the information on its website, if any.

16 Where a director resigns from his office, he shall (MAY)[2] within a period of 30 days from the date of resignation, forward to the Registrar a copy of his resignation along with reasons for the resignation in Form DIR-11 along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014.

Provided that in case a company has already filed Form DIR-12 with the Registrar under rule 15, a foreign director of such company resigning from his office may authorise in writing a practising chartered accountant or cost accountant in practice or company secretary in practice or any other resident director of the company to sign Form DIR-11 and file the same on his behalf intimating the reasons for the resignation.”

Precautions to be taken by the Director while resigning from the Company

There are certain precautions / checkpoints which should be taken care of while resigning from the Board of the Company.

Que. First of all, why precautions are important in the first place?

Ans. Precautions in resigning from the Board of Directors of a Company is important because it is a Director who is responsible for affairs of the Company and also can be held liable for any act, commission or omission which is / would have been his duty to perform or refrain from. A Director is under the definition of officer in default under Companies Act, 2013 which means if a Company commits any default along with the Company, the Director of the Company will also be liable for the same.

Precaution 1 – Can a Director’s Resignation be subject to approval of the Board?

This issue has been examined by the author in a separate article in light of various judgements and the provision of the Act. Both the articles are available in our blog section for readers.

Precaution 2 – Reasons for Resignation

In terms of proviso to Section 168(1), the Director resigning should provide detailed reasons for his / her resignation.

Although, if the sub-section (1) is read along with the proviso its clear that a Company or its Directors cannot claim that since the reasons for resignation are not detailed or sufficient, therefore the resignation of Director is invalid or void. But it would be a non-compliance of Section 168 on the part of resigning Director, if detailed reasons are not provided.

Now, as to what shall constitute a detailed reason for resignation as Director is an area of discretion and subjective to various interpretations.

Most of the resignation letters state the reason as “pre-occupation in other works”. A plain reading of the aforesaid phrase gives an idea that a person is occupied in other areas and would not be able to devote his time in the capacity of Director of the Company. But if critically analysed this reason will not hold good if the resigning is a non-executive Director who does not have day to day involvement in managing the affairs of the Company as the Director was not actively involved in the management.

The ACCA (Association of Chartered Certified Accountants) in its discussion paper on guidance for Directors while resigning from the Board has stated that “It is acceptable if someone is resigning due to reasons of illness, bereavement or other genuine personal difficulties, but we propose that anyone who uses the ‘personal reasons’ excuse should, if they have other listed directorships, be required to explain in the same announcement why these ‘personal reasons’ do not make it necessary to resign from those positions, too.

Similarly, numerous other factors can come into play and therefore whether a reason for resignation mentioned in the resignation letter can be termed as detailed or not would depend upon the facts and circumstances of the case.

Precaution 3 – Date of Resignation

When we talk about the date of Resignation we are talking about 2 (Two) dates, one the date mentioned on the face of the resignation letter (date of signing the letter) and the other is the effective date of resignation.

The effective date of resignation as per law is date of receipt of letter by the Company or such date from which the Director wants the resignation to be effective as mentioned in the letter, whichever is later, unless the resignation was subject to approval or acceptance of the Board (refer precaution 1 above).

Until the resignation has become effective the Director resigning shall be deemed to be a Director and accordingly shall continue be liable for the acts, commissions and omissions of the Company.

Now, if there is a situation where a Director is aware that there are fraudulent acts are going in the Company and he has been raising alarms in this regard too but nothing has been done by the rest of director in this regard, and he has decided to resign from the Company, he should make sure that his resignation should be effective at the earliest point of time possible. For this he should make sure that if he is not writing an effective date in the resignation letter, then the letter should reach the Company at the earliest instance. For modes through which the resignation letter can be sent to the Company and when the same shall be treated as served can be referred to in precaution no. 4 & 5.

Precaution 4 – Mode of Sending the Resignation Letter

In terms of Section 20 of the Companies Act, 2013, if a document[3] is to be served upon the Company it can be either sent by registered post, speed post or courier or by hand delivery at the registered office of the Company or through electronic means as prescribed in rule 35 of Companies (Incorporation) Rules, 2014, which is e-mail & Fax.

As discussed above the resignation letter can be sent by way of registered post, speed post or courier[4] or by hand delivery at the registered office of the Company or also through e-mail/ Fax at the numbers designated by the Company for communication with the Company. In case of sending the resignation letter by post the same shall be deemed to be delivered or served at the time at which the letter would be delivered in the ordinary course of post.

This means if the resignation letter is sent at the corporate office of the Company or any other office other than the registered office then the resignation shall not be deemed to be served upon the Company.

Precaution 5 – To whom the Resignation Letter should be addressed?

In terms of Section 168(1), the Director resigning should send the resignation letter to the Company. Therefore, a person should not leave any scope of doubt should address the letter to the Board of the Company and not a Director of the Company.

Further, the resigning Director should make sure that the resignation letter is delivered to the Company and not to any Director or officer thereof, to avoid leave any room for interpretational issues or litigations.

Further, the resigning Director should ensure that in case he is opting to send the resignation letter through electronic means then the e-mail id/ Fax No. which the Company has designated for sending communications. Further, in case the resignation is being communicated through e-mail it is advisable that in addition to the e-mail id designated for sending communications, the mail should also be sent to the Company Secretary, if any, Chairman and also on the e-mail id mentioned at the Master Data of the Company at MCA portal.

Precaution 6 – Filing of MBP-1 with the Company within 30 days of Resignation

Section 189(2) of the Companies Act, 2013 requires that a Director who is relinquishing his office shall within 30 days thereof, intimate the Company of his concerns and interests i associations in accordance with Section 184(1) (MBP-1). This is not complied with in most of the cases. Although not giving of MBP-1 will not invalidate the resignation tendered but would definitely be a non-compliance on the part of resigning Director.

Precaution 7 – Should the resigning Director file e-form DIR-11?

Companies (Amendment) Act, 2017 has made filing of form DIR-11 by the resigning Director optional on the part of the Director. Now, on basis of what considerations a Director should decide to file or not to file resignation with ROC in DIR-11.

Although now optional, in following situations it is highly advisable to file e-form DIR-11 for intimating the resignation with ROC:-

where the resigning Director has an apprehension as to that the Company would be using dilatory tactics to file e-form DIR-12.
where the resigning Director has an apprehension of use of his Digital Signature (DSC) fraudulently for filing any return of the Company with the ROC, so that the DSC of the resigning Director is de-linked from the Company.
where the time period of 30 days as stipulated has expired and the e-form DIR-12 has not been filed by the Company yet.
where there was only 1 Director left on the Board of the Company and he also wants to resign, then he should file e-form DIR-11 because, there is no other Director in the Company and he himself cannot affix DSC in e-form DIR-12 for his own resignation.
After that, the newly appointed Directors (by promoters or central government) under Section 168(3) will file e-form DIR-12 for resignation of previous Director.

Precaution 8 – Mentioning the e-mail ID in the Resignation Letter

In case, the resignation is being sent by any mode (except e-mail), it is advisable that the resignation letter should contain the e-mail id of the resigning Director, so that the Company cannot delay the filing of e-form DIR-12 on the pretext that the e-mail id of the resigning Director was not available.

Precaution 9 – Obtaining the copy of e-form DIR-12 by inspecting the records of the Company online with ROC

It is advisable that, the resigning Director pay fee at the MCA portal and download the copy of e-form DIR-12 filed by the Company for intimating his resignation, so that cross checking can be done as to whether information and documents corroborate or contradict from the viewpoint of resigning Director.

Precaution 10 – Documents to be preserved in this regard

Following documents should preserved by the resigning Director to enable him to defend the challenges of validity of the resignation:-

Copy of Resignation Letter.
Proof of service of Resignation Letter to the Company
(Speed post receipt/ Regd. Post receipt / email copy / Original receiving, if resignation was served by hand)
Copy of any acknowledgement / communication received from the Company, if any.
Copy of AOA of the Company, with specific reference to the clause governing the resignation by a Director.
Copy of e-form DIR-11 filed with ROC, if any.
Copy of e-form DIR-12 filed by the Company with ROC.

[1] Substituted by the Companies (Amendment) Act, 2017 and effective from 07/05/2018.

[2] Substituted by The Companies (Appointment and Qualification of Directors) Second Amendment Rules, 2018

[3] As per Section 2(36) Document includes notice and therefore includes “notice in writing” mentioned in Section 168.

[4] Courier means courier which provides a proof of delivery. (Rule 35(5) of Companies (Incorporation) Rules, 2014.

FORMAT of a sample resignation letter can be downloaded from this weblink.