Chapter 11 of companies act, 2013 with rules & amendments

7/11/2015

Chapter XI APPOINTMENT AND

QUALIFICATIONS OF

DIRECTORS

Shalu Saraf Company Secretary MICRO POLYPET PRIVATE LIMITED

Section-wise Rules

Amendment in Rules

Amendment in Act

Annexure & Circulars

Forms etc.

(All the section and rules are hyperlinked)

Chapter XI Companies Act, 2013

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INDEX

149 Company to have Board of Directors.

150 Manner of selection of independent directors and maintenance of databank

of independent directors.

151 Appointment of director elected by small shareholders.

152 Appointment of directors.

153 Application for allotment of Director Identification Number.

154 Allotment of Director Identification Number.

155 Prohibition to obtain more than one Director Identification Number

156 Director to intimate Director Identification Number.

157 Company to inform Director Identification Number to Registrar.

158 Obligation to indicate Director Identification Number

159 Punishment for contravention.

160 Right of persons other than retiring directors to stand for directorship

161 Appointment of additional director, alternate director and nominee director.

162 Appointment of directors to be voted individually.

163 Option to adopt principle of proportional representation for appointment of

directors.

164 Disqualifications for appointment of director

165 Number of directorships.

166 Duties of directors.

167 Vacation of office of director

168 Resignation of director.

169 Removal of directors.

170 Register of directors and key managerial personnel and their shareholding.

171 Members’ right to inspect.

172 Punishment.


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149. Company to have Board of Directors01.04.2014

*Circular 14/2014 **Circular 25/2014

(1) Every company shall have a Board of Directors consisting of individuals as directors and shall have—

(a) a minimum number of three directors in the case of a public company, two directors in the case

of a private company, and one director in the case of a One Person Company; and

(b) a maximum of fifteen directors:

Provided that a company may appoint more than fifteen directors after passing a special resolution:

Provided further that such class or classes of companies as may be prescribed, shall have at least one

woman director.

(2) Every company existing on or before the date of commencement of this Act shall within one year from

such commencement comply with the requirements of the provisions of sub-section (1).

(3) Every company shall have at least one director who has stayed in India for a total period of not less

than one hundred and eighty-two days in the previous calendar year.

(4) Every listed public company shall have at least one-third of the total number of directors as

independent directors and the Central Government may prescribe the minimum number of independent

directors in case of any class or classes of public companies.

Explanation.—for the purposes of this sub-section, any fraction contained in such one-third

number shall be rounded off as one.

(5) Every company existing on or before the date of commencement of this Act shall, within one year from

such commencement or from the date of notification of the rules in this regard as may be applicable,

comply with the requirements of the provisions of sub-section (4).

(6) An independent director in relation to a company, means a director other than a managing director or

a whole-time director or a nominee director,—

(a) who, in the opinion of the Board, is a person of integrity and possesses relevant expertise and

experience;

(b) (i) who is or was not a promoter of the company or its holding, subsidiary or associate company;

(ii) who is not related to promoters or directors in the company, its holding, subsidiary or associate

company;

(c) who has or had no pecuniary relationship with the company, its holding, subsidiary or associate

company, or their promoters, or directors, during the two immediately preceding financial years

or during the current financial year;

(d) none of whose relatives has or had pecuniary relationship or transaction with the company, its

holding, subsidiary or associate company, or their promoters, or directors, amounting to two per

cent. or more of its gross turnover or total income or fifty lakh rupees or such higher amount as

may be prescribed, whichever is lower, during the two immediately preceding financial years or

during the current financial year;


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(e) who, neither himself nor any of his relatives—

(i) holds or has held the position of a key managerial personnel or is or has been

employee of the company or its holding, subsidiary or associate company in any of

the three financial years immediately preceding the financial year in which he is

proposed to be appointed;

(ii) is or has been an employee or proprietor or a partner, in any of the three financial

years immediately preceding the financial year in which he is proposed to be

appointed, of—

(A) a firm of auditors or company secretaries in practice or cost auditors of the

company or its holding, subsidiary or associate company; or

(B) any legal or a consulting firm that has or had any transaction with the company,

its holding, subsidiary or associate company amounting to ten per cent. or more

of the gross turnover of such firm;

(iii) holds together with his relatives two per cent. or more of the total voting power of

the company; or

(iv) is a Chief Executive or director, by whatever name called, of any non- profit

organization that receives twenty-five percent or more of its receipts from the

company, any of its promoters, directors or its holding, subsidiary or associate

company or that holds two per cent. or more of the total voting power of the

company; or

(f) who possesses such other qualifications as may be prescribed.

(7) Every independent director shall at the first meeting of the Board in which he participates as a director

and thereafter at the first meeting of the Board in every financial year or whenever there is any change in

the circumstances which may affect his status as an independent director, give a declaration that he meets

the criteria of independence as provided in sub-section (6).

Explanation.—for the purposes of this section, “nominee director” means a director nominated

by any financial institution in pursuance of the provisions of any law for the time being in force, or of any

agreement, or appointed by any Government, or any other person to represent its interests.

(8) The company and independent directors shall abide by the provisions specified in Schedule IV.

(9) Notwithstanding anything contained in any other provision of this Act, but subject to the provisions of

sections 197 and 198, an independent director shall not be entitled to any stock option and may receive

remuneration by way of fee provided under sub-section (5) of section 197, reimbursement of expenses

for participation in the Board and other meetings and profit related commission as may be approved by

the members.

(10) Subject to the provisions of section 152, an independent director shall hold office for a term up to

five consecutive years on the Board of a company, but shall be eligible for re- appointment on passing of

a special resolution by the company and disclosure of such appointment in the Board's report.

(11) Notwithstanding anything contained in sub-section (10), no independent director shall hold office for

more than two consecutive terms, but such independent director shall be eligible for appointment after

the expiration of three years of ceasing to become an independent director:


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Provided that an independent director shall not, during the said period of three years, be

appointed in or be associated with the company in any other capacity, either directly or indirectly.

Explanation.—for the purposes of sub-sections (10) and (11), any tenure of an independent

director on the date of commencement of this Act shall not be counted as a term under those sub-

sections.

(12) Notwithstanding anything contained in this Act,—

(i) an independent director;

(ii) a non-executive director not being promoter or key managerial personnel,

shall be held liable, only in respect of such acts of omission or commission by a company which had

occurred with his knowledge, attributable through Board processes, and with his consent or connivance

or where he had not acted diligently.

(13) The provisions of sub-sections (6) and (7) of section 152 in respect of retirement of directors by

rotation shall not be applicable to appointment of independent directors.

=

Rule 3. Woman director on the Board.- The following class of companies shall appoint at least one woman director- (i) every listed company; (ii) every other public company having -

(a) paid–up share capital of one hundred crore rupees or more; or (b) turnover of three hundred crore rupees or more:

Provided that a company, which has been incorporated under the Act and is covered under provisions of second proviso to sub-section (1) of section 149 shall comply with such provisions within a period of six months from the date of its incorporation:

Provided further that any intermittent vacancy of a woman director shall be filled-up by the Board at the earliest but not later than immediate next Board meeting or three months from the date of such vacancy whichever is later. Explanation. - For the purposes of this rule, it is hereby clarified that the paid up share capital or turnover, as the case may be, as on the last date of latest audited financial statements shall be taken into account.

Rule 4. Number of independent directors.- The following class or classes of companies shall have at least two directors as independent directors-

i. the Public Companies having paid up share capital of ten crore rupees or more; or ii. the Public Companies having turnover of one hundred crore rupees or more; or

iii. the Public Companies which have, in aggregate, outstanding loans, debentures and deposits, exceeding fifty crore rupees: Provided that in case a company covered under this rule is required to appoint a higher

number of independent directors due to composition of its audit committee, such higher number of independent directors shall be applicable to it:


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Provided further that any intermittent vacancy of an independent director shall be filled-up by the Board at the earliest but not later than immediate next Board meeting or three months from the date of such vacancy, whichever is later:

Provided also that where a company ceases to fulfil any of three conditions laid down in sub-rule (1) for three consecutive years, it shall not be required to comply with these provisions until such time as it meets any of such conditions;

Explanation. - For the purposes of this rule, it is here by clarified that, the paid up share capital or turnover or outstanding loans, debentures and deposits, as the case may be, as existing on the last date of latest audited financial statements shall be taken into account:

Provided that a company belonging to any class of companies for which a higher number of independent directors has been specified in the law for the time being in force shall comply with the requirements specified in such law.

Rule 5. Qualifications of independent director.-

An independent director shall possess appropriate skills, experience and knowledge in one or more fields of finance, law, management, sales, marketing, administration, research, corporate governance, technical operations or other disciplines related to the company’s business.


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150. Manner of selection of independent directors and maintenance of

databank of independent directors01.04.2014

(1) Subject to the provisions contained in sub-section (5) of section 149, an independent director may be

selected from a data bank containing names, addresses and qualifications of persons who are eligible and

willing to act as independent directors, maintained by anybody, institute or association, as may be notified

by the Central Government, having expertise in creation and maintenance of such data bank and put on

their website for the use by the company making the appointment of such directors:

Provided that responsibility of exercising due diligence before selecting a person from the data

bank referred to above, as an independent director shall lie with the company making such appointment.

(2) The appointment of independent director shall be approved by the company in general meeting as

provided in sub-section (2) of section 152 and the explanatory statement annexed to the notice of the

general meeting called to consider the said appointment shall indicate the justification for choosing the

appointee for appointment as independent director.

(3) The data bank referred to in sub-section (1), shall create and maintain data of persons willing to act as

independent director in accordance with such rules as may be prescribed.

(4) The Central Government may prescribe the manner and procedure of selection of independent

directors who fulfil the qualifications and requirements specified under section 149.

Rule 6. Creation and maintenance of databank of persons offering to become independent

directors. –

(1) Anybody, institute or association (hereinafter to be referred as “the agency”), which has been

authorized in this behalf by the Central Government shall create and maintain a data bank of persons

willing and eligible to be appointed as independent director and such data bank shall be placed on the

website of the Ministry of Corporate Affairs or on any other website as may be approved or notified by

the Central Government.

(2) The data bank referred to in sub-rule (1) shall contain the following details in respect of each person

included in the data bank to be eligible and willing to be appointed as independent director-

(a) DIN (Director Identification Number);

(b) the name and surname in full;

(c) income-tax PAN; 18.09.2014

(d) the father’s name and mother’s name and spouse’s name (if married);18.09.2014

(e) the date of Birth;

(f) gender;

(g) the nationality;

(h) the occupation;

(i) full Address with PIN Code (present and permanent);

(j) phone number;

(k) e-mail id;


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(l) the educational and professional qualifications;

(m) experience or expertise, if any;

(n) any legal proceedings initiated or pending against such person;

(o) the list of limited liability partnerships in which he is or was a designated partner along with-

(i) the name of the limited liability partnership;

(ii) the nature of industry; and

(iii) the duration- with dates;

(p) the list of companies in which he is or was director along with -

(i) the name of the company;

(ii) the nature of industry;

(iii) the nature of directorship – Executive or Non-executive or Managing Director or

Independent Director or Nominee Director; and

(iv) duration – with dates.

(3) A disclaimer shall be conspicuously displayed on the website hosting the databank that a company

must carry out its own due diligence before appointment of any person as an independent director

and “the agency” maintaining the databank or the Central Government shall not be held responsible

for the accuracy of information or lack of suitability of the person whose particulars form part of the

databank.

(4) Any person who desires to get his name included in the data bank of independent directors shall

make an application to “the agency” in Form DIR-1.18.09.2014

(5) The agency may charge a reasonable fee from the applicant for inclusion of his name in the data

bank of independent directors.

(6) Any person who has applied for inclusion of his name in the data bank of independent directors

or any person whose name appears in the data bank, shall intimate to the agency about any changes

in his particulars within fifteen days of such change.

(7) The databank posted on the website shall -

(a) be accessible at the specified website;

(b) be substantially identical to the physical version of the data bank;

(c) be searchable on the parameters specified in sub-rule (2);

(d) be presented in a format or formats convenient for both printing and viewing online;

and

(e) contain a link to obtain the software required to view or print the particulars free of

charge.


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151. Appointment of director elected by small shareholders01.04.2014

A listed company may have one director elected by such small shareholders in such manner and with such

terms and conditions as may be prescribed.

Explanation.—for the purposes of this section “small shareholders” means a shareholder holding shares

of nominal value of not more than twenty thousand rupees or such other sum as may be prescribed.

Rule 7. Small shareholders’ director.-

(1) A listed company, may upon notice of not less than one thousand small shareholders or one-

tenth of the total number of such shareholders, whichever is lower, have a small shareholders’

director elected by the small shareholders:

Provided that nothing in this sub-rule shall prevent a listed company to opt to have a director

representing small shareholders suo moto and in such a case the provisions of sub-rule (2) shall not

apply for appointment of such director.

(2) The small shareholders intending to propose a person as a candidate for the post of small

shareholders’ director shall leave a notice of their intention with the company at least fourteen days

before the meeting under their signatures specifying the name, address, shares held and folio

number of the person whose name is being proposed for the post of director and of the small

shareholders who are proposing such person for the office of director:

Provided that if the person being proposed does not hold any shares in the company, the

details of shares held and folio number need not be specified in the notice:

(3) The notice shall be accompanied by a statement signed by the person whose name is being

proposed for the post of small shareholders’ director stating -

(a) his Director Identification Number;

(b) that he is not disqualified to become a director under the Act; and

(c) his consent to act as a director of the company

(4) Such director shall be considered as an independent director subject to, his being eligible under

sub-section (6) of section 149 and his giving a declaration of his independence in accordance with

subsection (7) of section 149 of the Act.

(5) The appointment of small shareholders’ director shall be subject to the provisions of section 152

except that-

(a) such director shall not be liable to retire by rotation;

(b) such director’s tenure as small shareholders’ director shall not exceed a period of three

consecutive years; and

(c) on the expiry of the tenure, such director shall not be eligible for re-appointment.

(6) A person shall not be appointed as small shareholders’ director of a company, if the person is not

eligible for appointment in terms of section 164.


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(7) A person appointed as small shareholders’ director shall vacate the office if -

(a) the director incurs any of the disqualifications specified in section 164;

(b) the office of the director becomes vacant in pursuance of section 167;

(c) the director ceases to meet the criteria of independence as provided in sub-section (6) of

section 149.

(8) No person shall hold the position of small shareholders’ director in more than two companies

at the same time:

Provided that the second company in which he has been appointed shall not be in a

business which is competing or is in conflict with the business of the first company.

(9) A small shareholders’ director shall not, for a period of three years from the date on which he

ceases to hold office as a small shareholders’ director in a company, be appointed in or be

associated with such company in any other capacity, either directly or indirectly.


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152. Appointment of directors01.04.2014

(1) Where no provision is made in the articles of a company for the appointment of the first director, the

subscribers to the memorandum who are individuals shall be deemed to be the first directors of the

company until the directors are duly appointed and in case of a One Person Company an individual being

member shall be deemed to be its first director until the director or directors are duly appointed by the

member in accordance with the provisions of this section.

(2) Save as otherwise expressly provided in this Act, every director shall be appointed by the company in

general meeting.

(3) No person shall be appointed as a director of a company unless he has been allotted the Director

Identification Number under section 154.

(4) Every person proposed to be appointed as a director by the company in general meeting or otherwise,

shall furnish his Director Identification Number and a declaration that he is not disqualified to become a

director under this Act.

(5) A person appointed as a director shall not act as a director unless he gives his consent to hold the office

as director and such consent has been filed with the Registrar within thirty days of his appointment in

such manner as may be prescribed:

Provided that in the case of appointment of an independent director in the general meeting, an

explanatory statement for such appointment, annexed to the notice for the general meeting, shall include

a statement that in the opinion of the Board, he fulfils the conditions specified in this Act for such an

appointment.

(6)

(a) Unless the articles provide for the retirement of all directors at every annual general meeting, not

less than two-thirds of the total number of directors of a public company shall—

i. be persons whose period of office is liable to determination by retirement of directors by

rotation; and

ii. Save as otherwise expressly provided in this Act, be appointed by the company in general

meeting.

(b) The remaining directors in the case of any such company shall, in default of, and subject to any

regulations in the articles of the company, also be appointed by the company in general meeting.

(c) At the first annual general meeting of a public company held next after the date of the general

meeting at which the first directors are appointed in accordance with clauses (a) and (b) and at

every subsequent annual general meeting, one-third of such of the directors for the time being as

are liable to retire by rotation, or if their number is neither three nor a multiple of three, then,

the number nearest to one-third, shall retire from office.

(d) The directors to retire by rotation at every annual general meeting shall be those who have been

longest in office since their last appointment, but as between persons who became directors on


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the same day, those who are to retire shall, in default of and subject to any agreement among

themselves, be determined by lot.

(e) At the annual general meeting at which a director retires as aforesaid, the company may fill up

the vacancy by appointing the retiring director or some other person thereto.

Explanation.—for the purposes of this sub-section, “total number of directors” shall not include

independent directors, whether appointed under this Act or any other law for the time being in force, on

the Board of a company.

(7)

(a) If the vacancy of the retiring director is not so filled-up and the meeting has not expressly resolved

not to fill the vacancy, the meeting shall stand adjourned till the same day in the next week, at

the same time and place, or if that day is a national holiday, till the next succeeding day which is

not a holiday, at the same time and place.

(b) If at the adjourned meeting also, the vacancy of the retiring director is not filled up and that

meeting also has not expressly resolved not to fill the vacancy, the retiring director shall be

deemed to have been re-appointed at the adjourned meeting, unless—

i. at that meeting or at the previous meeting a resolution for the re-appointment of

such director has been put to the meeting and lost;

ii. the retiring director has, by a notice in writing addressed to the company or its Board

of directors, expressed his unwillingness to be so re-appointed;

iii. he is not qualified or is disqualified for appointment;

iv. a resolution, whether special or ordinary, is required for his appointment or re-

appointment by virtue of any provisions of this Act; or

v. section 162 is applicable to the case.

Explanation.—for the purposes of this section and section 160, the expression “retiring director” means

a director retiring by rotation.

Rule 8. Consent to act as director.-

Every person who has been appointed to hold the office of a director shall on or before the

appointment furnish to the company a consent in writing to act as such in Form DIR-2:

Provided that the company shall, within thirty days of the appointment of a director, file such

consent with the Registrar in Form DIR-12 along with the fee as provided in the Companies

(Registration Offices and Fees) Rules, 2014.


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153. Application for allotment of Director Identification Number01.04.2014

Every individual intending to be appointed as director of a company shall make an application for

allotment of Director Identification Number to the Central Government in such form and manner and

along with such fees as may be prescribed.

Rule 9. Application for allotment of Director Identification Number.-

(1) Every individual, who is to be appointed as director of a company shall make an application

electronically in Form DIR-3, to the Central Government for the allotment of a Director Identification

Number (DIN) along with such fees as provided in the Companies (Registration Offices and Fees)

Rules, 2014.

(2) The Central Government shall provide an electronic system to facilitate submission of application

for the allotment of DIN through the portal on the website of the Ministry of Corporate Affairs.

(3)

(a) The applicant shall download Form DIR-3 from the portal, fill in the required particulars sought

therein, and sign the form therein, verify and sign the form18.09.2014 and after attaching copies of the

following documents, scan and file the entire set of documents electronically-

(i) photograph;

(ii) proof of identity;

(iii) proof of residence;

(iv) verification by the applicant for applying for allotment of DIN in form DIR-4; and18.09.2014

(v) specimen signature duly verified.

(b) Form DIR-3 shall be signed and submitted electronically by the applicant using his or her own

Digital Signature Certificate and shall be verified digitally by -

(i) a chartered accountant in practice or a company secretary in practice or a cost

accountant in practice; or

(ii) a company secretary in full time employment of the company or by the managing

director or director of the company in which the applicant is to be appointed as director.

(4) In case the name of a person does not have a last name, then his or her father’s or grandfather’s

surname shall be mentioned in the last name along with the declaration in Form No. DIR-3A.” 18.09.2014


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154. Allotment of Director Identification Number01.04.2014

The Central Government shall, within one month from the receipt of the application under section 153,

allot a Director Identification Number to an applicant in such manner as may be prescribed.

Rule 10. Allotment of DIN.-

1) On the submission of the Form DIR-3 on the portal and payment of the requisite amount of

fees through online mode the provisional DIN shall be generated by the system automatically

which shall not be utilized till the DIN is confirmed by the central Govt.

2) After generation of the 98[application number], the Central Government shall process the

applications received for allotment of DIN under sub-rule (2) of rule 9, decide on the approval

or rejection thereof and communicate the same to the applicant along with the DIN allotted

in case of approval by way of a letter by post or electronically or in any other mode, within a

period of one month from the receipt of such application.

3) If the Central Government, on examination, finds such application to be defective or

incomplete in any respect, it shall give intimation of such defect or incompleteness, by placing

it on the website and by email to the applicant who has filed such application, directing the

applicant to rectify such defects or incompleteness by resubmitting the application within a

period of fifteen days of such placing on the website and email:

Provided that the Central Government shall –

(i) reject the application and direct the applicant to file fresh application with complete

and correct information, where the defect has been rectified partially or the

information given is still found to be defective;

(ii) treat and label such application as invalid in the electronic record in case the defects

are not removed within the given time; and

(iii) inform the applicant either by way of letter by post or electronically or in any other

mode.

4) In case of rejection or invalidation of application, the provisional DIN so allotted by the system

shall get lapsed automatically and the fee so paid with the application shall neither be

refunded nor adjusted with any other application.

5) All Director Identification Numbers allotted to individual(s) by the Central Government before

the commencement of these rules shall be deemed to have been allotted to them under these

rules.

6) The Director Identification Number so allotted under these rules is valid for the life-time of

the applicant and shall not be allotted to any other person.

Rule 10A

(1) Every director, functioning as a director in one or more companies on or before the 30th June,

2007 and who has not yet intimated his DIN to such company or companies shall, within one month

of the receipt of Director Identification Number from the Central Government, intimate his Director

Identification Number to the company or all companies wherein he is a director as per Form DIR-3B.

(2) The intimation by the company of Director Identification Number of its directors under section

157 of the Act shall be furnished in Form DIR-3C within fifteen days of receipt of intimation under

section 156.18.09.2014


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155. Prohibition to obtain more than one Director Identification Number01.04.2014

No individual, who has already been allotted a Director Identification Number under section 154, shall

apply for, obtain or possess another Director Identification Number.

156. Director to intimate Director Identification Number01.04.2014

Every existing director shall, within one month of the receipt of Director Identification Number from the

Central Government, intimate his Director Identification Number to the company or all companies

wherein he is a director.


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157. Company to inform Director Identification Number to Registrar01.04.2014

(1) Every company shall, within fifteen days of the receipt of intimation under section 156, furnish the

Director Identification Number of all its directors to the Registrar or any other officer or authority as may

be specified by the Central Government with such fees as may be prescribed or with such additional fees

as may be prescribed within the time specified under section 403 and every such intimation shall be

furnished in such form and manner as may be prescribed.

(2) If a company fails to furnish Director Identification Number under sub-section (1), before the expiry of

the period specified under section 403 with additional fee, the company shall be punishable with fine

which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees and

every officer of the company who is in default shall be punishable with fine which shall not be less than

twenty-five thousand rupees but which may extend to one lakh rupees.

Rule 11. Cancellation or surrender or Deactivation of DIN.-

The Central Government or Regional Director (Northern Region), Noida or any officer authorized by

the Regional Director may, upon being satisfied on verification of particulars or documentary proof

attached with the application received along with fee as specified in Companies (Registration Offices

and Fees) Rules, 201418.09.2014 from any person, cancel or deactivate the DIN in case -

(a) the DIN is found to be duplicated in respect of the same person provided the data related to

both the DIN shall be merged with the validly retained number;

(b) the DIN was obtained in a wrongful manner or by fraudulent means;

(c) of the death of the concerned individual;

(d) the concerned individual has been declared as a person of unsound mind by a competent

Court;

(e) if the concerned individual has been adjudicated an insolvent:

Provided that before cancellation or deactivation of DIN pursuant to clause (b), an opportunity

of being heard shall be given to the concerned individual;

(f) on an application made in Form DIR-5 by the DIN holder to surrender his or her DIN along with

declaration that he has never been appointed as director in any company and the said DIN has

never been used for filing of any document with any authority, the Central Government may

deactivate such DIN:

Provided that before deactivation of any DIN in such case, the Central Government shall verify

e-records.

Explanation. - For the purposes of clause (b) -

(i) the term “wrongful manner” means if the DIN is obtained on the strength of documents

which are not legally valid or incomplete documents are furnished or on suppression of

material information or on the basis of wrong certification or by making misleading or false

information or by misrepresentation;

(ii) the term “fraudulent means” means if the DIN is obtained with an intent to deceive any

other person or any authority including the Central Government.


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Rule 12. Intimation of changes in particulars specified in DIN application. –

(1) Every individual who has been allotted a Director Identification Number under these rules shall, in

the event of any change in his particulars as stated in Form DIR-3, intimate such change(s) to the

Central Government within a period of thirty days of such change(s) in Form DIR-6 in the following

manner, namely;-

(i) The applicant shall download Form DIR-6 from the portal, fill in the relevant changes,

attach copy of the proof of the changed particulars and verification in the Form DIR-7 all

of which shall be scanned and submitted electronically; The applicant shall download Form

DIR-6 from the portal, fill in the relevant changes, verify the Form and attach duly scanned

copy of the proof of the changed particulars and submit electronically.18.09.2014

(ii) the form shall be digitally signed by a chartered accountant in practice or a company

secretary in practice or a cost accountant in practice;

(iii) the applicant shall submit the Form DIR-6;

(2) The Central Government, upon being satisfied, after verification of such changed particulars from

the enclosed proofs, shall incorporate the said changes and inform the applicant by way of a letter by

post or electronically or in any other mode confirming the effect of such change in the electronic

database maintained by the Ministry.

(3) The DIN cell of the Ministry shall also intimate the change(s) in the particulars of the director

submitted to it in Form DIR-6 to the concerned Registrar(s) under whose jurisdiction the registered

office of the company(s) in which such individual is a director is situated.

(4) The concerned individual shall also intimate the change(s) in his particulars to the company or

companies in which he is a director within fifteen days of such change.


17 CS SHALU SARAF

158. Obligation to indicate Director Identification Number01.04.2014

Every person or company, while furnishing any return, information or particulars as are required to be

furnished under this Act, shall mention the Director Identification Number in such return, information or

particulars in case such return, information or particulars relate to the director or contain any reference

of any director.

159. Punishment for contravention01.04.2014

If any individual or director of a company, contravenes any of the provisions of section 152, section 155

and section 156, such individual or director of the company shall be punishable with imprisonment for a

term which may extend to six months or with fine which may extend to fifty thousand rupees and where

the contravention is a continuing one, with a further fine which may extend to five hundred rupees for

every day after the first during which the contravention continues.


18 CS SHALU SARAF

160. Right of persons other than retiring directors to stand for

directorship01.04.2014

*Circular 38/2014

(1) A person who is not a retiring director in terms of section 152 shall, subject to the provisions of this

Act, be eligible for appointment to the office of a director at any general meeting, if he, or some member

intending to propose him as a director, has, not less than fourteen days before the meeting, left at the

registered office of the company, a notice in writing under his hand signifying his candidature as a director

or, as the case may be, the intention of such member to propose him as a candidate for that office, along

with the deposit of one lakh rupees or such higher amount as may be prescribed which shall be refunded

to such person or, as the case may be, to the member, if the person proposed gets elected as a director

or gets more than twenty-five percent of total valid votes cast either on show of hands or on poll on such

resolution.

(2) The company shall inform its members of the candidature of a person for the office of director under

sub-section (1) in such manner as may be prescribed.

Rule 13. Notice of candidature of a person for directorship.-

The company shall, at least seven days before the general meeting, inform its members of the

candidature of a person for the office of a director or the intention of a member to propose such

person as a candidate for that office-

(1) by serving individual notices, on the members through electronic mode to such members who

have provided their email addresses to the company for communication purposes, and in

writing to all other members; and

(2) by placing notice of such candidature or intention on the website of the company, if any:

Provided that it shall not be necessary for the company to serve individual notices upon the

members as aforesaid, if the company advertises such candidature or intention, not less than seven

days before the meeting at least once in a vernacular newspaper in the principal vernacular language

of the district in which the registered office of the company is situated, and circulating in that district,

and at least once in English language in an English newspaper circulating in that district.


19 CS SHALU SARAF

161. Appointment of additional director, alternate director and nominee

director12.09.2013

(1) The articles of a company may confer on its Board of Directors the power to appoint any person, other

than a person who fails to get appointed as a director in a general meeting, as an additional director at

any time who shall hold office up to the date of the next annual general meeting or the last date on which

the annual general meeting should have been held, whichever is earlier.

(2) The Board of Directors of a company may, if so authorized by its articles or by a resolution passed by

the company in general meeting, appoint a person, not being a person holding any alternate directorship

for any other director in the company, to act as an alternate director for a director during his absence for

a period of not less than three months from India:

Provided that no person shall be appointed as an alternate director for an independent director

unless he is qualified to be appointed as an independent director under the provisions of this Act:

Provided further that an alternate director shall not hold office for a period longer than that

permissible to the director in whose place he has been appointed and shall vacate the office if and when

the director in whose place he has been appointed returns to India:

Provided also that if the term of office of the original director is determined before he so returns

to India, any provision for the automatic re-appointment of retiring directors in default of another

appointment shall apply to the original, and not to the alternate director. (Sub-sec. 2 came into effect from

01.04.2014)

(3) Subject to the articles of a company, the Board may appoint any person as a director nominated by

any institution in pursuance of the provisions of any law for the time being in force or of any agreement

or by the Central Government or the State Government by virtue of its shareholding in a Government

company.

(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.


20 CS SHALU SARAF

162. Appointment of directors to be voted individually12.09.2013

(1) At a general meeting of a company, a motion for the appointment of two or more persons as directors

of the company by a single resolution shall not be moved unless a proposal to move such a motion has

first been agreed to at the meeting without any vote being cast against it.

(2) A resolution moved in contravention of sub-section (1) shall be void, whether or not any objection was

taken when it was moved.

(3) A motion for approving a person for appointment, or for nominating a person for appointment as a

director, shall be treated as a motion for his appointment.

163. Option to adopt principle of proportional representation for appointment

of directors12.09.2013

Notwithstanding anything contained in this Act, the articles of a company may provide for the

appointment of not less than two-thirds of the total number of the directors of a company in accordance

with the principle of proportional representation, whether by the single transferable vote or by a system

of cumulative voting or otherwise and such appointments may be made once in every three years and

casual vacancies of such directors shall be filled as provided in sub-section (4) of section 161.


21 CS SHALU SARAF

164. Disqualifications for appointment of director01.04.2014

*Circular 34/2014 **Circular 41/2014

(1) A person shall not be eligible for appointment as a director of a company, if —

(a) he is of unsound mind and stands so declared by a competent court;

(b) he is an undischarged insolvent;

(c) he has applied to be adjudicated as an insolvent and his application is pending;

(d) he has been convicted by a court of any offence, whether involving moral turpitude or otherwise,

and sentenced in respect thereof to imprisonment for not less than six months and a period of

five years has not elapsed from the date of expiry of the sentence:

Provided that if a person has been convicted of any offence and sentenced in respect thereof to

imprisonment for a period of seven years or more, he shall not be eligible to be appointed as a

director in any company;

(e) an order disqualifying him for appointment as a director has been passed by a court or Tribunal

and the order is in force;

(f) he has not paid any calls in respect of any shares of the company held by him, whether alone or

jointly with others, and six months have elapsed from the last day fixed for the payment of the

call;

(g) he has been convicted of the offence dealing with related party transactions under section 188 at

any time during the last preceding five years; or

(h) he has not complied with sub-section (3) of section 152.

(2) No person who is or has been a director of a company which—

(a) has not filed financial statements or annual returns for any continuous period of three financial

years; or

(b) has failed to repay the deposits accepted by it or pay interest thereon or to redeem any

debentures on the due date or pay interest due thereon or pay any dividend declared and such

failure to pay or redeem continues for one year or more,

shall be eligible to be re-appointed as a director of that company or appointed in other company

for a period of five years from the date on which the said company fails to do so.

(3) A private company may by its articles provide for any disqualifications for appointment as a director in

addition to those specified in sub-sections (1) and (2):

Provided that the disqualifications referred to in clauses (d), (e) and (g) of sub-section (1) shall not

take effect—

i. for thirty days from the date of conviction or order of disqualification;

ii. where an appeal or petition is preferred within thirty days as aforesaid against the conviction

resulting in sentence or order, until expiry of seven days from the date on which such appeal or

petition is disposed of ; or


22 CS SHALU SARAF

iii. where any further appeal or petition is preferred against order or sentence within seven days,

until such further appeal or petition is disposed of.

Rule 14. Disqualification of directors’ sub-section (2) of section 164.-

(1) Every director shall inform to the company concerned about his disqualification under sub-section

(2) of section 164, if any, in Form DIR-8 before he is appointed or re-appointed.

(2) Whenever a company fails to file the financial statements or annual returns, or fails to repay any

deposit, interest, dividend, or fails to redeem its debentures, as specified in sub-section (2) of section

164, the company shall immediately file Form DIR-9, to the Registrar furnishing therein the names and

addresses of all the directors of the company during the relevant financial years.

(3) When a company fails to file the Form DIR-9 within a period of thirty days of the failure that would

attract the disqualification under sub-section (2) of section 164, officers of the company specified in

clause (60) of section 2 of the Act shall be the officers in default.

(4) Upon receipt of the Form DIR-9 under sub-rule (2), the Registrar shall immediately register the

document and place it in the document file for public inspection.

(5) Any application for removal of disqualification of directors shall be made in Form DIR-10.


23 CS SHALU SARAF

165. Number of directorships01.04.2014

(1) No person, after the commencement of this Act, shall hold office as a director, including any alternate

directorship, in more than twenty companies at the same time:

Provided that the maximum number of public companies in which a person can be appointed as

a director shall not exceed ten.

Explanation.— For reckoning the limit of public companies in which a person can be appointed as director,

directorship in private companies that are either holding or subsidiary company of a public company shall

be included.

(2) Subject to the provisions of sub-section (1), the members of a company may, by special resolution,

specify any lesser number of companies in which a director of the company may act as directors.

(3) Any person holding office as director in companies more than the limits as specified in sub-section (1),

immediately before the commencement of this Act shall, within a period of one year from such

commencement,—

(a) choose not more than the specified limit of those companies, as companies in which he wishes to

continue to hold the office of director;

(b) resign his office as director in the other remaining companies; and

(c) intimate the choice made by him under clause (a), to each of the companies in which he was

holding the office of director before such commencement and to the Registrar having jurisdiction

in respect of each such company.

(4) Any resignation made in pursuance of clause (b) of sub-section (3) shall become effective immediately

on the dispatch thereof to the company concerned.

(5) No such person shall act as director in more than the specified number of companies

(a) after dispatching the resignation of his office as director or non-executive director thereof, in

pursuance of clause of sub-section (3);

(b) after the expiry of one year from the commencement of this Act, whichever is earlier.

(6) If a person accepts an appointment as a director in contravention of sub-section (1), he shall be

punishable with fine which shall not be less than five thousand rupees but which may extend to twenty-

five thousand rupees for every day after the first during which the contravention continues.


24 CS SHALU SARAF

166. Duties of directors01.04.2014

(1) Subject to the provisions of this Act, a director of a company shall act in accordance with the articles

of the company.

(2) A director of a company shall act in good faith in order to promote the objects of the company for the

benefit of its members as a whole, and in the best interests of the company, its employees, the

shareholders, the community and for the protection of environment.

(3) A director of a company shall exercise his duties with due and reasonable care, skill and diligence and

shall exercise independent judgment.

(4) A director of a company shall not involve in a situation in which he may have a direct or indirect interest

that conflicts, or possibly may conflict, with the interest of the company.

(5) A director of a company shall not achieve or attempt to achieve any undue gain or advantage either

to himself or to his relatives, partners, or associates and if such director is found guilty of making any

undue gain, he shall be liable to pay an amount equal to that gain to the company.

(6) A director of a company shall not assign his office and any assignment so made shall be void.

(7) If a director of the company contravenes the provisions of this section such director shall be punishable

with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees


25 CS SHALU SARAF

167. Vacation of office of director01.04.2014

(1) The office of a director shall become vacant in case—

(a) he incurs any of the disqualifications specified in section 164;

(b) he absents himself from all the meetings of the Board of Directors held during a period of twelve

months with or without seeking leave of absence of the Board;

(c) he acts in contravention of the provisions of section 184 relating to entering into contracts or

arrangements in which he is directly or indirectly interested;

(d) he fails to disclose his interest in any contract or arrangement in which he is directly or indirectly

interested, in contravention of the provisions of section 184;

(e) he becomes disqualified by an order of a court or the Tribunal;

(f) he is convicted by a court of any offence, whether involving moral turpitude or otherwise and

sentenced in respect thereof to imprisonment for not less than six months:

Provided that the office shall be vacated by the director even if he has filed an appeal against the

order of such court;

(g) he is removed in pursuance of the provisions of this Act;

(h) he, having been appointed a director by virtue of his holding any office or other employment in

the holding, subsidiary or associate company, ceases to hold such office or other employment in

that company.

(2) If a person, functions as a director even when he knows that the office of director held by him has

become vacant on account of any of the disqualifications specified in sub-section (1), he shall be

punishable with imprisonment for a term which may extend to one year or with fine which shall not be

less than one lakh rupees but which may extend to five lakh rupees, or with both.

(3) 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.

(4) A private company may, by its articles, provide any other ground for the vacation of the office of a

director in addition to those specified in sub-section (1).


26 CS SHALU SARAF

168. Resignation of director01.04.2014

(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 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.

(3) Where all the directors of a company resign from their offices, or vacate their offices under section

167, 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 general meeting.

Rule 15. Notice of resignation of director.-

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.

Rule 16. Copy of resignation of director to be forwarded by him.-

Where a director resigns from his office, he shall within a period of thirty 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 authorize in writing a practicing

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.19.01.2015


27 CS SHALU SARAF

169. Removal of directors01.04.2014

(1) A company may, by ordinary resolution, remove a director, not being a director appointed by the

Tribunal under section 242, before the expiry of the period of his office after giving him a reasonable

opportunity of being heard:

Provided that nothing contained in this sub-section shall apply where the company has availed

itself of the option given to it under section 163 to appoint not less than two- thirds of the total number

of directors according to the principle of proportional representation.

(2) A special notice shall be required of any resolution, to remove a director under this section, or to

appoint somebody in place of a director so removed, at the meeting at which he is removed.

(3) On receipt of notice of a resolution to remove a director under this section, the company shall

forthwith send a copy thereof to the director concerned, and the director, whether or not he is a member

of the company, shall be entitled to be heard on the resolution at the meeting.

(4) Where notice has been given of a resolution to remove a director under this section and the director

concerned makes with respect thereto representation in writing to the company and requests its

notification to members of the company, the company shall, if the time permits it to do so,—

(a) in any notice of the resolution given to members of the company, state the fact of the

representation having been made; and

(b) send a copy of the representation to every member of the company to whom notice of the

meeting is sent (whether before or after receipt of the representation by the company), and if a

copy of the representation is not sent as aforesaid due to insufficient time or for the company’s

default, the director may without prejudice to his right to be heard orally require that the

representation shall be read out at the meeting:

Provided that copy of the representation need not be sent out and the representation

need not be read out at the meeting if, on the application either of the company or of any other

person who claims to be aggrieved, the Tribunal is satisfied that the rights conferred by this sub-

section are being abused to secure needless publicity for defamatory matter; and the Tribunal

may order the company’s costs on the application to be paid in whole or in part by the director

notwithstanding that he is not a party to it. (Not yet enforced)

(5) A vacancy created by the removal of a director under this section may, if he had been appointed by

the company in general meeting or by the Board, be filled by the appointment of another director in his

place at the meeting at which he is removed, provided special notice of the intended appointment has

been given under sub-section (2).

(6) A director so appointed shall hold office till the date up to which his predecessor would have held

office if he had not been removed.

(7) If the vacancy is not filled under sub-section (5), it may be filled as a casual vacancy in accordance with

the provisions of this Act:

Provided that the director who was removed from office shall not be re-appointed as a director

by the Board of Directors.


28 CS SHALU SARAF

(8) Nothing in this section shall be taken—

(a) as depriving a person removed under this section of any compensation or damages payable to

him in respect of the termination of his appointment as director as per the terms of contract or

terms of his appointment as director, or of any other appointment terminating with that as

director; or

(b) as derogating from any power to remove a director under other provisions of this Act.


29 CS SHALU SARAF

170. Register of directors and key managerial personnel and their

shareholding01.04.2014

(1) Every company shall keep at its registered office a register containing such particulars of its directors

and key managerial personnel as may be prescribed, which shall include the details of securities held by

each of them in the company or its holding, subsidiary, subsidiary of company’s holding company or

associate companies.

(2) A return containing such particulars and documents as may be prescribed, of the directors and the key

managerial personnel shall be filed with the Registrar within thirty days from the appointment of every

director and key managerial personnel, as the case may be, and within thirty days of any change taking

place. [Form No. DIR-12]

Rule 17. Register of directors and key managerial personnel.-

(1) Every company shall keep at its registered office a register of its directors and key managerial

personnel containing the following particulars, namely:-

(a) Director Identification Number (optional for key managerial personnel);

(b) present name and surname in full;

(c) any former name or surname in full;

(d) father’s name, mother’s name and spouse’s name(if married) and surnames in full;

(e) date of birth;

(f) residential address (present as well as permanent);

(g) nationality (including the nationality of origin, if different);

(h) occupation;

(i) date of the board resolution in which the appointment was made;

(j) date of appointment and reappointment in the company;

(k) date of cessation of office and reasons therefor;

(l) office of director or key managerial personnel held or relinquished in any other body corporate;

(m) membership number of the Institute of Company Secretaries of India in case of company

secretary, if applicable; and

(n) Permanent Account Number (mandatory for key managerial personnel if not having DIN);

(2) In addition to the details of the directors or key managerial personnel, the company shall also

include in the aforesaid Register the details of securities held by them in the company, its holding

company, subsidiaries, subsidiaries of the company’s holding company and associate companies

relating to-

(a) the number, description and nominal value of securities;

(b) the date of acquisition and the price or other consideration paid;

(c) date of disposal and price and other consideration received;

(d) cumulative balance and number of securities held after each transaction;

(e) mode of acquisition of securities ;

(f) mode of holding – physical or in dematerialized form; and

(g) whether securities have been pledged or any encumbrance has been created on the securities.


30 CS SHALU SARAF

Rule 18. Return containing the particulars of directors and the key managerial personnel. -

A return containing the particulars of appointment of director or key managerial personnel and

changes therein, shall be filed with the Registrar in Form DIR-12 along with such fee as may be provided

in the Companies (Registration Offices and Fees) Rules, 2014 within thirty days of such appointment or

change, as the case may be.


31 CS SHALU SARAF

171. Members’ right to inspect01.04.2014

(1) The register kept under sub-section (1) of section 170,—

a) shall be open for inspection during business hours and the members shall have a right to take

extracts therefrom and copies thereof, on a request by the members, be provided to them free

of cost within thirty days; and

b) shall also be kept open for inspection at every annual general meeting of the company and shall

be made accessible to any person attending the meeting.

(2) If any inspection as provided in clause (a) of sub-section (1) is refused, or if any copy required under

that clause is not sent within thirty days from the date of receipt of such request, the Registrar shall on

an application made to him order immediate inspection and supply of copies required thereunder.

172. Punishment01.04.2014

If a company contravenes any of the provisions of this Chapter and for which no specific punishment is

provided therein, the company and every officer of the company who is in default shall be punishable

with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.


32 CS SHALU SARAF

Circular 14/2014 Clarification on Independent Director

General Circular No. 14/2014

No. 1/22/2013-CL-V

Government of India

Ministry of Corporate Affairs

5th Floor, A Wing, Shastri Bhavan,

Dr. R.P. Road, New Delhi

Dated: 9th June, 2014

To

All Regional Directors,

All Registrars of Companies,

All Stakeholders.

Subject: Clarifications on Rules prescribed under the Companies Act, 2013 Matters relating to

appointment and qualifications of directors and Independent Directors - reg.

Sir,

Government has received representations from Industry Chambers, Professional Institutes and other

stakeholders seeking clarifications inter alia about appointment of Independent Directors (IDs) under the

relevant provisions of the Companies Act, 2013 (Act) read with relevant rules with effect from 1st April,

2014. The representations have been examined and clarifications on the following points are hereby

given:-

(i) Section 149(6)(c): "pecuniary interest in certain transactions" :- (a) This provision inter alia requires

that an 'ID' should have no 'pecuniary relationship' with the company concerned or its holding/ subsidiary/

associate company and certain other categories specified therein during the current and last two

preceding financial years. Clarifications have been sought whether a transaction entered into by an 'ID'

with the company concerned at par with any member of the general public and at the same price as is

payable/paid by such member of public would attract the bar of 'pecuniary relationship' under section

149(6)(c). The matter has been examined and it is hereby clarified that in view of the provisions of section

188 which take away transactions in the ordinary course of business at arm's length price from the

purview of related party transactions, an 'ID' will not be said to have 'pecuniary relationship' under section

149(6)(c) in such cases.

(b) Stakeholders have also sought clarification whether receipt of remuneration, (in accordance with the

provisions of the Act) by an 'ID' from a company would be considered as having pecuniary interest while

considering his appointment in the holding company, subsidiary company or associate company of such

company.

The matter has been examined in consultation with SEBI and it is clarified that 'pecuniary

relationship' provided in section 149(6)(c) of the Act does not include receipt of remuneration, from one


33 CS SHALU SARAF

or more companies, by way of fee provided under sub-section (5) of section 197, reimbursement of

expenses for participation in the Board and other meetings and profit related commission approved by

the members, in accordance with the provisions of the Act.

(ii) Section 149: Appointment of 'IDs' : Clarification has been sought if 'IDs' appointed prior to April 1,

2014 may continue and complete their remaining tenure, under the provisions of the Companies Act,

1956 or they should demit office and be re-appointed (should the company so decide) in accordance with

the provisions of the new Act.

The matter has been examined in the light of the relevant provisions of the Act, particularly

section 149(5) and 149(10) & (11). Explanation to section 149(11) clearly provides that any tenure of an

'ID' on the date of commencement of the Act shall not be counted for his appointment/holding office of

director under the Act. In view of the transitional period of one year provided under section 149(5), it is

hereby clarified that it would be necessary that if it is intended to appoint existing 'IDs' under the new

Act, such appointment shall be made expressly under section 149(10)/ (11) read with Schedule IV of the

Act within one year from 1st April, 2014, subject to compliance with eligibility and other prescribed

conditions.

(iii) Section 149 (10)/(11) - Appointment of 'IDs' for less than 5 years:-Clarification has been sought as to

whether it would be possible to appoint an individual as an ID for a period less than five years.

It is clarified that section 149(10) of the Act provides for a term of "up to five consecutive years" for an

'ID'. As such while appointment of an 'ID' for a term of less than five years would be permissible,

appointment for any term (whether for five years or less) is to be treated as a one term under section

149(10) of the Act. Further, under section 149(11) of the Act, no person can hold office of 'ID' for more

than two consecutive terms'. Such a person shall have to demit office after two consecutive terms even if

the total number of years of his appointment in such two consecutive terms is less than 10 years. In such

a case the person completing 'consecutive terms of less than ten years’ shall be eligible for appointment

only after the expiry of the requisite cooling-off period of three years.

(iv) Appointment of 'IDs' through letter of appointment:- With reference to Para IV(4) of Schedule IV of

the Act (Code for IDs) which requires appointment of 'IDs' to be formalized through a letter of

appointment, clarification has been sought if such requirement would also be applicable for appointment

of existing 'IDs'?

The matter has been examined. In view of the specific provisions of Schedule IV, appointment of

'IDs' under the new Act would need to be formalized through a letter of appointment.

This issues with the approval of the competent authority.

Yours faithfully

(Kamna Sharma)

Assistant Director

Copy to: - e-Governance Section and Web Contents Officer to place this circular on the Ministry's website;

Guard File


34 CS SHALU SARAF

Circular 25/2014 Resident Director u/s. 149(3)


No. 1/22/ 13-CL-V

Government of India




Dated: - 26th June, 2014

To



All Stakeholders.

Subject: Clarification on applicability of requirement for resident director.

Sir,

Section 149(3) of the Companies Act, 2013 (Act) requires every company to have at least one director who

has stayed in India for a total period of not less than 182 days in the previous calendar year. Government

has received requests from stakeholders for clarification with regard to applicability of these provisions in

the current calendar/financial year.

2. The matter has been examined. It is clarified that the 'residency requirement' would be reckoned from

the date of commencement of section 149 of the Act i.e. 1st April, 2014. The first 'previous calendar year'

for compliance with these provisions would, therefore, be Calendar Year 2014. The period to be taken

into account for compliance with these provisions will be the remaining period of calendar year 2014 (i.e.

1st April to 31st December). Therefore, on a proportionate basis, the number of days for which the

director(s) would need to be resident in India, during Calendar Year 2014, shall exceed 136 days.

3. Regarding newly incorporated companies it is clarified that companies incorporated between 1.4.2014

to 30.9.2014 should have a resident director either at the incorporation stage itself or within six months

of their incorporation. Companies incorporated after 30.9.2014 need to have the resident director from

the date of incorporation itself.

This issues with the approval of the competent authority.

Yours faithfully,

(KMS Narayanan)

Assistant Director (Policy)

23387263


35 CS SHALU SARAF

Circular 38/2014 Clarification on refund of deposit under section 160 by section

8 company


No. 1/22/2013-CL-V

Government of India


5th Floor, "A" Wing, Shastri Bhavan,


Dated: 14th October, 2014

To


All Registrars of Companies.

Subject: Right of persons other than retiring directors to stand for directorship - Refund of deposit

under section 160 of the Companies Act, 2013 in certain cases.

Sir,

Clarity has been sought by companies registered under section 8 of the Companies Act, 2013

(corresponding to section 25 of Companies Act, 1956) about the manner in which the amount of deposit

of rupees one lakh received by them under sub-section (1) of section 160 of the Companies Act, 2013 (Act)

is to be handled if the depositor fails to secure more than twenty five per cent of the total valid votes. It

has been noted that the relevant provision is silent on such issue.

2. The matter has been examined in the Ministry and it is clarified that in such cases, the Board of directors

of a section 8 company is to decide as to whether the deposit made by or on behalf of the person failing

to secure more than twenty-five percent of the valid votes is to be forfeited or refunded.

3. This issues with the approval of the competent authority.

Yours faithfully,

(KMS Narayanan)



36 CS SHALU SARAF

Circular 34/2014 Company Law Settlement Scheme


F. No.02/13/2014 CL-V

Government of India



Dr. R.P. Road, New Delhi.

Dated: 12/08/2014

To,


All Registrars of Companies.

Subject: Company Law Settlement Scheme, 2014

Sir,

As you are aware, the Companies Act requires companies to file annual documents (Annual Return and

Financial Statements) on the MCA21 electronic registry within prescribed time limits. Sections 92, 137 and

403 of the Companies Act, 2013, which correspond to sections 159, 220 and 611 of the Companies Act,

1956 may be referred to in this regard. These annual documents are considered very important in context

of an up-to-date Registry. It is observed that a large percentage of companies have not filed their statutory

documents making them liable for penalties and prosecution for such non-compliance.

2. The Companies Act, 2013 lays down a stricter regime for the defaulting companies with higher

additional fees. The quantum of punishment has been enhanced under the above mentioned provisions

of the Act vis-a-vis the earlier Act i.e. Companies Act, 1956. A specific provision for enhanced fine in case

of repeated default has also been included in the form of section 451 of the Act. Additionally, the

provisions of section 164(2) of the Act, inter alia, providing for disqualification of directors In case a

company has not filed financial statements or annual returns for any continuous period of three financial

years has been extended to all companies.

3. The Ministry has received representations from various stakeholders requesting for grant of transitional

period/one-time opportunity to enable them to file their pending annual documents to avoid attraction

of higher fees/fine and other penal action, especially disqualification of their Directors prescribed under

the new provisions of the Act.

4. In order to give such an opportunity to the defaulting companies to enable them to make their default

good by filing these belated documents, the Central Government in exercise of powers conferred under

section 403 and 460 of the Companies Act, 2013 has decided to introduce a Scheme namely 'Company

Law Settlement Scheme 2014" [CLSS-2014] condoning the delay in filing the above mentioned documents

with the Registrar, granting immunity for prosecution and charging a reduced additional fee of 25% of the


37 CS SHALU SARAF

actual additional fees payable as per section 403 read with Companies (Registration Offices and Fee)

Rules, 2014 for filing those belated documents under the Companies Act, 1956/2013 and the Rules made

thereunder.

5. In addition, the scheme gives an opportunity to Inactive companies to get their companies declared as

'dormant company' under section 455 of the Act (Chapter XXIX) by filing a simple application at reduced

fees. The said provision enables Inactive companies to remain on the Register of Companies with minimal

compliance requirements.

6. The details of the Scheme are as under:-

(i) The scheme shall come into force on the 15th August 2014 and shall remain in force up to 15th

October, 2014. (The CLSS was extended till 15 November 2014 by Circular no. 40/2014 dated 15

October 2014. It was further extended till 31 December 2014 by Circular no. 44/2014 dated 14

November 2014. )

(ii) Definitions - In this Scheme, unless the context otherwise requires, -

a. "Act" means the Companies Act, 2013 and Companies Act, 1956 (where ever applicable);

b. "Company" means a company as defined in clause of 20 of section 2 of the Companies

Act, 2013;

c. "Defaulting company" means a company defined under the Companies Act, 2013, and

which has made a default in filing of annual statutory documents.

d. "Designated authority" means the Registrar of Companies having jurisdiction over the

registered office of the company.

e. "immunity certificate" means the certificate referred to in sub-paragraph (vi) of the

Scheme;

f. "Inactive Company" means as defined in Explanation (i) to sub-section (1) of section

455(1) of Companies Act, 2013.

(iii) Applicability: - Any "defaulting company" is permitted to file belated documents which were due

for filing till 30th June 2014 In accordance with the provisions of this Scheme:

(iv) Manner of payment of fees and additional fee on filing belated document for seeking Immunity

under the Scheme - The defaulting company shall pay statutory filing fees as prescribed under

the Companies (Registration Offices and fee) Rules, 2014 along with additional fees of 25% of the

actual additional fee payable on the date of filing of each belated document.

(v) Withdrawal of appeal against prosecution launched for the offences: If the defaulting company

has filed any appeal against any notice issued or complaint filed before the competent court for

violation of the provisions under the Companies Act, 1956 and/or Companies Act, 2013 in respect

of which application is made under this scheme, the applicant shall before filing an application for

issue of immunity certificate, withdraw the appeal and furnish proof of such withdrawal along

with the application.

(vi) Application for issue of Immunity in respect of document(s) filed under the Scheme —The

application for seeking immunity in respect of belated documents filed under the Scheme may be

made electronically in the e-Form CLSS-2014 annexed, after the document(s) are taken on file, or

on record or approved by the Registrar of Companies as the case may be. The e-Form for filing

application to obtain such a certificate will be available on the MCA21 portal from 1" September,


38 CS SHALU SARAF

2014 and may be filed thereafter but not later than three months from the date of closure of the

Scheme. There shall not be any fee payable on this Form.

Provided that this immunity shall not be applicable in the matter of any appeal pending

before the court of law and in case of management disputes of the company pending before the

court of law or tribunal.

(vii) Order by designated authority granting immunity from penalty and prosecution - The

designated authority shall consider the application and upon being satisfied shall grant the

immunity certificate in respect of documents filed under this Scheme.

(viii) Scheme not to apply in certain cases - (a) This scheme shall not apply to the filing of

belated documents other than the following:

a) Form 20B — Form for filing annual return by a company having share capital.

b) Form 21A — Particulars of Annual return for the company not having share capital.

c) Form 23AC, 23ACA, 23AC-XBRL and 23ACA-XBRL — Forms for filing Balance Sheet and

Profit & Loss account.

d) Form 66 — Form for submission of Compliance Certificate with the Registrar.

e) Form 23B — Form for intimation for Appointment of Auditors.

(ix) This Scheme shall not apply

a. to companies against which action for striking off the name under sub-section (5) of

section 560 of Companies Act, 1956 has already been initiated by the Registrar of

Companies or

b. where any application has already been filed by the companies for action of striking off

name from the Register of Companies or

c. where applications have been filed for obtaining Dormant Status under section 455 of the

Companies Act, 2013;

d. to vanishing companies

(x) After granting the immunity, the Registrar concerned shall withdraw the prosecution(s) pending

if any before the concerned Court(s);

(xi) Scheme for Inactive Companies: The defaulting inactive companies, while filing due documents

under CLSS-2014 can, simultaneously, either:

a. apply to get themselves declare as Dormant Company under section 455 of the

Companies Act, 2013 by filing e-form MSC-1 at 25% of the fee for the said form; OR

b. apply for striking off the name of the company by filing e- Form FTE at 25% of the fee

payable on form FTE.

(xii) Applicability of clause (a) sub-section (2) of Companies Act, 2013 in case of companies availing

the Scheme:- In case of defaulting companies which avail of this Scheme and file all belated

documents, the provisions of clause (a) of subsection (2) of section 164 of the Companies Act,

2013 shall apply only for the prospective defaults, if any, by such companies.

7. At the conclusion of the Scheme, the Registrar shall take necessary action under the Companies Act,

1956/ 2013 against the companies who have not availed this Scheme and are in default in filing these

documents in a timely manner.

Yours faithfully,

(KMS Narayanan)

Assistant Director


39 CS SHALU SARAF

Circular 41/2014 Clarification under CLSS, 2014 on section 164(2)


No. 2/13/2014-CL-V

Government of India


5th Floor, 'A' Wing, Shastri Bhawan,

Dr. R.P. Road, New Delhi.

Dated: 15.10.2014

To



All Stakeholders.

Subject: COMPANY LAW SETTLEMENT SCHEME, 2014 (CLSS-2014) -Clarification u/s 164(2) of the

Companies Act, 2013.

Sir,

Representations have been received from stakeholders seeking clarification as to whether immunity from

disqualification of directors pursuant to clause (a) of sub-section (2) of section 164 of the Companies Act,

2013 will be applicable with respect to companies who have filed Balance Sheets and Annual Returns on

or after 01/04/2014, but before coming into force of CLSS-2014 with effect from 15.08.2014 as contained

in General Circular No. 34/2014 dated 12/08/2014.

2. The matter has been examined and it is hereby clarified that in case of companies, who have filed their

balance sheets and annual returns on or after 01/04/2014 but prior to launch of CLSS-2014,

disqualification under clause (a) of sub-section (2) of section 164 of the Companies Act, 2013 shall apply

only for prospective defaults, if any, by such companies.

3. This issues with the approval of the competent authority.

Yours faithfully,

(KMS Narayanan)



40 CS SHALU SARAF

Form DIR-2

Consent to act as a director of a company

[Pursuant to section 152(5) and rule 8 of Companies (Appointment and Qualification of Directors)

Rules, 2014]

To

………………. (Name of the company)

………………. (Address of the company)

Subject: Consent to act as a director.

I …………………., hereby give my consent to act as director of ………………………….. (Name of the company),

pursuant to sub-section (5) of section 152 of the Companies Act, 2013 and certify that I am not disqualified

to become a director under the Companies Act, 2013.

1. Director Identification Number (DIN):

2. Name (in full):

3. Father’s Name (in full):

4. Address:

5. E-mail id:

6. Mobile no.

7. Income-tax PAN

8. Occupation:

9. Date of birth:

10. Nationality:

11. No. of companies in which I am already a Director and out of such companies the names of the

companies in which I am a Managing Director, Chief Executive Officer, Whole time Director, Secretary,

Chief Financial Officer, Manager.

12. Particulars of membership No. and Certificate of practice No. if the applicant is a member of any

professional Institute. Specifically state NIL if none.

Declaration

I declare that I have not been convicted of any offence in connection with the promotion, formation or

management of any company or LLP and have not been found guilty of any fraud or misfeasance or of any

breach of duty to any company under this Act or any previous company law in the last five years. I further

declare that if appointed my total Directorship in all the companies shall not exceed the prescribed

number of companies in which a person can be appointed as a Director.

Signature:

Designation:

Date:

Place:

Attachments:

1. Proof of identity;

2. Proof of residence;


41 CS SHALU SARAF

FORM. DIR-3A

Declaration

[Pursuant to rule 9(4) of the Companies (Appointment and Qualification of Directors) Rules, 2014]

If the name of a person does not have a last name, then his/her father's first name should be filled in the

mandatory "last Name' field. In such a case, declaration should also be submitted along with DIN

application, in the format given below:

Specimen/format of declaration:

(If ID proof has single name for applicant)

I.................................... (Applicant name as per ID proof) son/daughter of (Name).........................

(Surname) residing at................................ (Address as per address proof) do solemnly affirm and state as

follows:

I do not use my Family Name/Surname as my last name. However, as this is a mandatory requirement for

DIN application, I am using my father's surname as last name.

I solemnly declare that the statements given above are true to the best of my knowledge and belief and

that it conceals nothing and that no part of it is false.

I further declare that I have read and understood the provisions of sections 153, 155, 156, 447 and 448

read with sections 449, 450 and 451 of the Companies Act, 2013.

MID proof has single name for applicant's father)

I .................. and my father's name..................... as appearing on the enclosed ID proof, does not have the

surname. My grandfather's name is ... (name.................... (Surname)...................... For the purpose of the

DIN application, I am mentioning my grandfather's surname "...............................” as my surname, as this

is a mandatory requirement for applying DIN.

I solemnly declare that the statements given above are true to the best of my knowledge and belief and

that it conceals nothing and that no part of it is false.

I further declare that I have read and understood the provisions of Sections 153, 447 and 448 read with

Sections 449, 450 and 451 of the Companies Act, 2013.

Date: Signature of the Applicant

Place:


42 CS SHALU SARAF

FORM DIR-3B

Intimation of allotment of Director Identification Number (DIN) to the Company by the Director

[Pursuant to rule 10(A) of the Companies (Appointment and Qualification of Directors) Amendment

Rules, 2014]

To

Date

Subject: Intimation of allotment of Director Identification Number (DIN) to the Company by the Director

Sir,

Reference section 156 of the Companies Act, 2013 and the Rules made thereunder, I am submitting the

information regarding DIN allotted to me along with additional information as prescribed:

Sr. No.

Subject Particulars

1 Director Identification Number (DIN)

2 Name

3 Father's Name

4 Present residential address

5 e-mail ID

6 Designation (Director or Managing Director or Alternate director or Additional Director or Director appointed in casual vacancy or Nominee Director or Whole-time director) (please specify)

7 Specify whether Chairman, Executive Director, Non-Executive Director (in case more than one, specify both)

8 Category (Promoter or Professional or Independent)

9 Name of the company or Institution whose Nominee the director is

10 Date of Appointment

Detail of the companies in which appointed as

11. Name of the Company

CIN Designation Date of appointment

12. Specimen Signature

A copy of the DIN Allotment Letter is enclosed. Please acknowledge the receipt.

Declaration

I hereby declare that:-

(i) I was appointed as director since incorporation i.e. with effect from Or

(ii) I was appointed as director by the Board w.e.f. ......... vide board resolution number..................

dated............... or by the shareholders resolution number............ dated.............. w.e.f................

(Copy of the said resolution shall be attached).

(iii) Copy of form 32 filed with the ROC to the effect of such appointment.


43 CS SHALU SARAF

Yours Faithfully

FORM 'DIR-8'

Intimation by Director

[Pursuant to Section 164(2) and rule 14(1) of Companies (Appointment and Qualification of Directors)

Rules, 2014]

Registration No. of Company …………………..

Nominal Capital Rs……………………

Paid-up Capital Rs…………………….

Name of Company …………………..

Address of its Registered Office …………………..

To

The Board of Directors of …………………..

I……………………….. Son/daughter/wife of………………………….... Resident of………………..….. director/managing

director/manager in the company hereby give notice that I am/was a director in the following companies

during the last three years:-

Name of company Date of Appointment Date of cessation

1.

2.

I further confirm that I have not incurred disqualification under section 164(2) of the Companies Act, 2013

in any of the above companies, in the previous financial year, and that I, at present, stand free from any

disqualification from being a director.

Or

I further confirm that I have incurred disqualifications under section 164(2) of the Companies Act, 2013 in

the following company(s) in the previous financial year, and that I, at present stand disqualified from being

a director.

Name of company Date of Appointment Date of cessation

1.

2.

Signature (Full Name)

Dated this ……………. day of …………


44 CS SHALU SARAF

FORM 'DIR-9'

Report by the company to Registrar

[Pursuant to Section 164 (2) read with rule 14 (2) of the Companies

(Appointment and Qualification of Directors) Rules, 2014]

Registration No. of Company ……………………..

Nominal Capital Rs…………………..

Paid-up Capital Rs…………………..

Name of Company ……………………..

Address of its Registered Office ……………………..

To

The Registrar of Companies,

It is hereby reported under section 164(2) of Companies Act, 2013 that M/s. …………………….. have failed to

(i) file the financial statements and annual returns for the last three financial years, or (ii) repay deposits

or pay interest thereon on due date being…………………….. Or redeem its debentures on due date

being…………………….. Or pay dividend declared by the company since …………………….. Or both. The period

of one year has expired on ……………………...

The name and address of directors at the relevant period are as under:-

(a) Director's name in full, without abbreviations

(b) Director's name as per company's records

(Abbreviations may be expanded and shown)

(c) Address of the Director: -

(i) Permanent

(ii) Present

(d) Positions held by the director in the last 5 years, prior to disqualification:

Signature Designation*

Dated this…………………….. Day of ……

*State whether Director, Managing Director, Manager or Secretary

Chapter 11 of companies act, 2013 with rules & amendments

Law

Transcript of Chapter 11 of companies act, 2013 with rules & amendments