Process of Appointmetn of Director: Roc Back Office Section 167

Series
405

PROCESS OF
APPOINTMETN
OF DIRECTOR
ROC BACK OFFICE
Section 167(3)

Goyal Divesh &

Associates

There is confusion in mind of professionals that if all the directors of
company are disqualified. Then “how to appoint new directors in the
Company ? And many other questions came into mind like:
DIVESH GOYAL Mob: +918130757966
Practicing Company Secretary csdiveshgoyal@gmail.com
GOYAL DIVESH& ASSOCIATES
 Who is having authority to appoint New Director?

 As all the directors disqualified then whose DSC will affix on the
form?
 Which Section of Companies Act, 2013 states about the same.
 What’s the process for appointment of new Director?
In words, if all the directors of company disqualified u/s 164 or vacant office due to any
reasons than there will be no director in the Company. However, as per companies act
there is limit of minimum no. of directors in the company. Therefore, Company has to
appoint new Director and the power for appointment of Director in above situation
given in Section 167 of Companies Act, 2013 (Extract given below)
“Where all the directors of a company vacate their offices under any of the disqualifications
specified in sub-section (1), the promoter or, in his absence, the Central Government shall
appoint the required number of directors who shall hold office till the directors are appointed by
the company in the general meeting.”
Note: As per section 167(3) in the above mentioned situation “Promoters” shall appoint
the required number of Directors.
Quick Bites:
i. Who is Promoters under Companies Act, 2013?

“(69) "promoter" means a person—
(a) who has been named as such in a prospectus or is identified by the

company in the annual return
Twitter: @DiveshGoyal04 Whatsapp: 8130757966
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Referred to in section 92; or
(b) who has control over the affairs of the company, directly or indirectly
whether as a shareholder, director or otherwise; or
(c) In accordance with whose advice, directions or instructions the Board of

Directors of the company is accustomed to act:
Provided that nothing in sub-clause (c) shall apply to a person who is acting
merely in a professional capacity;”
STEP‐ I: IDENTIFY PROMOTERS OF COMPANY
First Step in the process is to identify promoters of Company. As per definition generally
promoter can be identify form following sources:
 If name of such person mentioned as promoter in Annual Return (i.e. MGT-7)
 If as shareholder or director such person having control over Company.
1 Note: In general shareholders of Company are considered as promoters as they are
having control over business of Company.
STEP‐ II: DECIDE PERSON TO BE APPOINTED AS DIRECTORS OF COMPANY:
Promoters of Company shall identify persons for appointment as Director. Promoters
shall take following documents / information from the selected persons:
 DIN of such Directors (DIN is mandatory to appoint as Director of Company)
 Consent of directors being appointed through DIR-2
 Intimation in respect of disqualification through DIR-8
 Interest in other entities in MBP-1
 Identity proofs of the new directors

1
Author preparing editorial keep shareholder as promoter
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 Affidavit from new directors being appointed affirming that the name/s of the
companies/LLPs in which they are directors and that they are not disqualified to
act as Directors.
STEP‐ III: CALLING OF GENERAL MEETING:
After obtaining of above mentioned documents company required to hold General
Meeting for passing of resolution u/s 152 for appointment of Directors. As all the
directors of company become disqualified they can’t call EGM. Therefore, as per Section
100 shareholder of Company shall call the extra ordinary General Meeting.
 They will send requisition for same to the Directors and at registered office of
Company. (as directors already disqualified)
 Shareholders (i.e. promoters) shall call for Extra Ordinary General Meeting
Note: Process of calling and holding of EGM shall be same as called and held by Board of
Directors. Like:
 Sections 101, 102 etc sections shall be followed.
 Secretarial Standard 2 shall be followed. Etc.
STEP‐ IV: DOCUMENTS OF EGM TO BE SUBMIT WITH ROC:
After holding of EGM and passing of special resolution for appointment of new directors.
Promoters required preparing / maintaining following below mentioned documents:
 Copy of Notice issued to call the general meeting by promoters
 Proof of dispatch of notice along with names of the promoters/ shareholders and
their shareholding with copy of share certificates.
 Attendance sheet of the said EGM for appointment of new directors.
 Minutes of said Meeting.
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STEP‐ V: OTHER DOCUMENTS REQUIRED SUBMITTING WITH ROC:
 Certificate from an Auditor that the new Directors being appointed are having
valid DIN’s and are not disqualified due to any provisions under Companies Act
and are qualified to act as Directors under Companies Act.
 Affidavits from all the disqualified directors citing the name of the Company due
to which they were disqualified.
 Filed copy of DIR-12.
STEP‐ VI: SUBMISSION OF DOCUMENTS WITH ROC:
Note: Documents required to be submit with ROC shall be in relation to appointment of
one Director only. Because, one director has been updated on MCA website by ROC and
company can file DIR-12 of other director by using DSC of director updated by ROC.
Quick Bites:
ii. How to submit documents with ROC?

There are two ways to submit above mentioned documents with ROC.
A. Submit above mentioned documents in e‐form GNL‐1 with DSC of Professional.
B. Submit hard copy of above mentioned documents in physical with ROC.

STEP‐ VII: UPDATING OF NAME OF DIRECTOR BY ROC:
ROC will check/ verify all the above mentioned documents. If ROC satisfies with the
documents then it will update name of one directors in its record and update same on
MCA website.
STEP‐ VIII: FILING OF E‐FORM DIR‐12 WITH ROC:
After updating of name of above director, company shall file DIR-12 for appointment of
other director and use DSC of First Director.
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List of Documents required to be submitting with ROC:

1. Copy of Notice issued to call general meeting by the promoters.
2. Proof of dispatch of notice along with names of the promoters/ shareholders and
their shareholding with copies of share certificates.
3. Attendance sheet of the said EGM for appointment of new Directors .
4. Consent of Directors being appointed through DIR-2, intimation in respect of
disqualification through DIR-8 and interest in other entities in MBP-1, identity
proofs if the new Director being appointed.
5. Minutes of the said meeting
6. Certificate from an Auditor that the new Directors being appointed are having
valid DINs and are not disqualified due to any provision under Companies Act
and are qualified to act as Directors under Companies Act.
7. Affidavits from all the Disqualified directors citing the name of the Company due
to which they were disqualified.
8. Affidavits from new Directors being appointed affirming that the names of the
companies/LLPs in which they are Directors and that they are not disqualified to
act as Directors.
Also company should submit the covering letter specifying the case of the company clearly
about facts of the case proposing the name of one director to be updated through
Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in

Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com). Disclaimer: The
entire contents of this document have been prepared on the basis of relevant provisions and as per the information
existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability
of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the
relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a
professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of
such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL
DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION
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Series

 Who is having authority to appoint New Director?

“(69) "promoter" means a person—

(a) who has been named as such in a prospectus or is identified by the

Referred to in section 92; or

(c) In accordance with whose advice, directions or instructions the Board of

List of Documents required to be submitting with ROC:

Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in

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