FAQS ON PROCESS OF APPOINTMENT OF DIRECTOR
THROUGH ROC BACK OFFICE
1. What is the regulatory provisions for backend appointment of
Directors under the Companies Act, 2013 (the Act)?
As per Section 168(3) of the Act, when all
the directors are disqualified under Section 167 of the Act, then the Central
Government (ROC/ RD) shall appoint the required number of directors based on
the request received from the Promoters.
2. How shall we decide as to under whose ROC jurisdiction we
have to file the application?
Application
shall be filed with the ROC under whose jurisdiction the registered office of
the company is situated.
3. Can a Company which is struck off for non-filing of Annual accounts and Annual return and because of which the Directors are disqualified appoint Directors through back end process?
A Struck off Company need to first file a
Petition for revival under Sec.252 to NCLT and if Hon’ble NCLT is convinced
that there is a fit and proper case, it may order for the revival of the
Company. Though the Company is revived, the disqualification will still
continue for the Directors. In this case, the Company may either approach High
Court for removal of Disqualification of the Directors or appoint different
Directors who are not disqualified through the back end.
4. Typically which are the Companies which may require its
Directors to appoint through back end.
A Company might have filed all its statutory
returns like AOC 4, MGT 7 in time. But the Directors of the Company may be part
of another Company and it has not filed its Annual accounts and Annual return
for the past three years. The Directors of the Active Company will be
disqualified because of the non-filing of returns by the other Company in which
they are Directors. In this case, the Directors have the option to either
approach the High court for removal of disqualification or appoint Directors
through ROC office back end process.
5. How much time does it take for the entire process of
appointment of Directors through back end?
It usually takes
15-30 days for appointment of director through back end based on the facts and
circumstances.
6.
Is there any statutory fee for appointment of Director through backend?
No, there is no statutory fee for appointment of Director thorough backend
7. How can the documents be submitted to ROC?
Original signed copy of all the documents in
Legal or A4 sheet and Soft copy of the documents in PDF format in a CD with a
file size not exceeding 2.5 MB shall be submitted with ROC office.
8. As all the directors disqualified then whose DSC will affix
on the form?
DIR-12 need to be filled and printed; in this
printed physical copy of DIR 12, both the new director and the promoter will
sign and submit.
9. Who have the authority to propose the appointment of new
director?
Promoters holding major shares of the Company
can appoint the Director at the General Meeting of the Company.
10. How can the promoters of the Company be identified?
Promoters of the Company shall be the person
who is named as such in the Annual Return or who has control over the Company. Generally,
in a closely held private company, the Shareholders may be the promoters of the
Company.
11. Who can call for EGM when all the directors are disqualified?
Shareholders of the Company shall call for the extra
ordinary General Meeting as per Section 100 of the Act.
12. Whether the procedure is similar to all the ROC in India?
There will be minor changes in the documents
required and procedures to be followed from ROC to ROC. But the overall
procedure remains the same in all the ROC.
13. How many directors can be appointed through back end?
ROC can be approached for appointment of only
one director. If ROC is satisfied with the
documentary proofs submitted, then name of one director will be updated in its
record and the same will be reflected on MCA website.
14. Can the other Directors be appointed through E-filing of Form
DIR-12?
Once the ROC appoints the first director
through backend, the Company can file E-Form DIR-12 for appointment of other Director
by using DSC of first Director.
