FAQS ON PROCESS OF APPOINTMENT OF DIRECTOR THROUGH ROC BACK OFFICE

 

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.

 

- A Mohan Kumar & 

  Vidhyesvari