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All Directors Resigned; What to Do?

May 24, 2016     by Simratjeet Kaur

Section 149(1) of the Companies Act, 2013 provides that a minimum of 2 director, in case of Private Company and 3 in case of Public Company, should be present at all times for smooth functioning of the Company. But what to do when the minimum requirement of directors falls below the stipulated limit defined in the Act?

There can be two scenarios:

  1. When there is only 1 director remaining on the Board.
  2. When all the Directors have resigned from the Board.

In Scenario a. the Company can refer Section 174(2) of the Companies Act, 2013 and it’s Articles of Association for the remedy. Section 174(2) provides if the number of directors falls below the quorum then the continuing directors:

  • may appoint a director in the meeting for increasing the number of directors to that fixed for the quorum or
  • Summon a general meeting of the company to appoint a director and for no other purpose.

Clause 69 of Table F provides that if the number of directors falls below the quorum fixed by the Act, the remaining directors can, for increasing the number of directors to that fixed quorum, summon a General Meeting of the Company.

In Scenario b. the Company can refer section 168(3) of Companies Act, 2013. The section provides that when all the directors of a company resign from the Board, the promoter or the Central Government in promoter’s absence, shall appoint the required number of directors who shall hold office till the directors can be appointed in the general meeting.

Generally the Companies where all the directors have resigned face a lot of difficulties while filing the forms for appointment of new directors. Filing of eforms on MCA portal requires digital signatures of the Authorised Signatory Director. When all the directors resign from the Board, there are no authorised signatory director left in the Company (due to deactivation of DSC of resigning director on filing of DIR-11). Therefore eform for appointment of new director can’t be filed.

MCA issued a clarification in this regard vide General Circular No. 3/2015 dated 3rd March, 2015. MCA clarified that in such scenario (as mentioned in scenario b.), the ROC may allow any one of the resigned director (who was an authorised signatory of the Company) to file the eform as applicable and subject to the compliance of other provisions of Companies Act, 2013.


67 thoughts on “All Directors Resigned; What to Do?

  1. There were two directors in Private Limited Company out of which one died on 29.07.2018 and remaining director wanted to appoint another director however director who was going to be appointed is having DIN allotted on 19.08.2018. Company had convened a board meeting dated 20.08.2018 for appointment of additional director to fill minimum requirement of statutory limit of directors. Before filing form dir 12 at that time company got strike off by RoC on 12.09.2018 and now revived on 17.09.2020
    Can company file DIR12 with cessation of one director date 29.07.2018 and appointment of additional director date 20.08.2018 in one form only?

  2. in one of my private company director died in june and now we want to appoint new director but the new new director has applied for din after death of existing director.can we appoint in this case director from back end

    1. Pursuant to the provision of section 149 of the Companies Act, 2013 the minimum number of directors in a private company should not be less than two directors. However, in case one of the directors on the Board had died (we are assuming there is two director on the Board) the other Director can appoint a new director to fill the casual vacancy arisen due to the death of the existing director.

      Further, pursuant to the provision of Section 152 of the Companies Act, 2013 one of the conditions for being a Director is that person must have a valid DIN on the date of his/her appointment. However in your case, since the Director has procured his/her DIN post the date of the existing director therefore in this case his/her appointment will be considered from the date of the allotment of DIN.

      Furthermore, based on the practice followed the Director is appointed through backend in case all the existing Directors of the Company are disqualified.

  3. In a pvt ltd company, there were three promoters. Out these three promoters, two were directors. These two directors died in a road accident. Now only one promoters is alive.
    How the one promoter proceed to appoint one director. How the eforms shall be filed. Whose DSC shall be used

    1. In case of a company without any directors on the Board, the appointment can be made by the Promoter/s by filing form DIR 12 with requisite attachments in physical mode duly signed by Promoter/s with the Jurisdictional ROC.

  4. Sir in a private limited company having two directors, one director resigned and filed DIR-11. now with only one director on board the company could not file form INC-22 and hence become non-compliant. now when we want to add another director while filing DIR-12 a message appeared since the Form INC-22 is not filed you can not file DIR-12 and without filing DIR-12 we can not file INC-22. Pls suggest what to do ?

    1. Since there is a technical difficulty to appoint the director due to non-filing of INC-22A. It is advisable to appoint the director from Back-end through concerned Registrar of Companies. We suggest an advise of professional is taken in this case.

  5. sir, in a pvt ltd company we are 2 directors, now i want to resign but another director is not ready to appoint one new director and not accepting my resignation and not ready to file DIN 12, what i should do for not liable for company activity, please guide

    1. Dear Sir,

      Pursuant to Companies Act, 2013, A Private Company shall have at least 2 directors, therefore, DIR-12 cannot be filed with the MCA unless another director is appointed.

      Further, please note that if a Director chooses to resign from his/ her office, it is solely his/ her discretion to do so and is not subject to the Company’s approval. Submission of Form DIR-12 is the responsibility of the Company, not resigning director. Thus, your resignation will be effective from the date on which the letter is received by company or from the date as mentioned in your resignation letter, whichever is later. Also please note that, you can send the resignation to the company and file Form DIR-11 (Notice of resignation of a director) with the MCA to bring your resignation to the notice of MCA. Resultant of which the resigning director is not liable for any future action of the company. However, it cannot change the status of the director’s cessation on the MCA portal i.e your name shall continue to show as a Director associated with the company.

  6. what happens to the authorities granted by the board after all directors have resigned. Does the board resolutions granting authority survive.

    1. The Companies Act, 2013 is silent on authorities granted by the Board after all the directors have resigned. However, in the said case, there can be two scenarios subject to the compliance of other provisions of the Companies Act or any other Act as may be applicable from time to time:

      a) Where the authority is granted to the resigned directors:
      Here ROC may allow any of the resigned directors to be authorised by board resolution only to file eform DIR-12 for appointment of new Directors in the Company.

      b) Where the authority is granted to the other Officer not being director of the Company:
      In this case, pursuant to the provisions of section 118(8) of the Companies Act, 2013, all the decisions taken in the board meeting, recorded in the minutes book and kept in accordance with the provisions of this section, shall deem to be valid unless the contrary is proved.

  7. What if in a company id incorporated 2.5 months ago, one of two directors want to resign. Is this possible without appointment of new director?

    1. Section 149(1) of the Companies Act, 2013 requires that every private company shall have a minimum number of 2 directors. In the given case, one of the two directors can resign from the company, provided a new director is appointed on the Board before the other Director resigns in order to comply with the requirements of the law, i.e. 2 directors on the Board of a Private Company.

  8. There are Two Directors in Private Company. One wishes to resign. Can we conduct Board Meeting with one director only?

    1. Pursuant to Section 174(2) of the Companies Act, 2013, in case the number of directors is reduced below the quorum fixed by the Act for a meeting the continuing directors or director may act notwithstanding any vacancy in the Board, for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company and for no other purpose.

      Hence, in the given situation remaining one director can conduct Board Meeting only for the purpose of increasing the number of directors fixed for the quorum or calling a general meeting to appoint a director and for no other purpose.

        1. Please note that there is no time frame for appointment of a new director by continuing director except for the appointment of a women director. Such vacation of office of a women director shall be filled within 3 months or next board meeting, whichever is later.

          However, the total number of directors in a company should not fall below the statutory limit of minimum directors in any case.

  9. A Joint venture company has been incorporated in which (A) One JV Partner as per the AoA has the right to nominate 4 Directors and another (B) JV Partner has the right to nominate 1 Director in the JV Company.

    Now the (A)’s Nominated Directors have resigned from the Company and we have only one director of (B) in the said company. A has also refused to nominate Directors in their place. What should be the way out for 1. Conducting Board Meeting and taking note of the Resignation Letter and filing the forms with MCA.

    1. As per the provision of section 174(2) of the Companies Act, 2013 in case the number of directors falls below the quorum fixed by the Act, the continuing directors or director may act for the purpose of increasing the number of directors to that fixed for the quorum, or of summoning a general meeting of the company.

      Hence in this case the director of (B) can appoint directors to fix the quorum or can call general meeting. Shareholders in the general meeting shall appoint directors to comply with the law.

      Though steps needs to be taken in terms of Sec 174(2), but further steps needs to be taken to restore the board to a position where it complies with AoA. You need to refer to AoA also in situations when one of the parties is not cooperating.

  10. There is a public company with 4 directors out of which only 2 have active DIN and remining 2 are not available for compliance. Annual filings are up-to-date but company KYC is pending. How to enable strike off/wind up of such a company ?

    1. As per the provisions of Section 248 of the Companies Act, 2013 and rules made therein, there is no prohibition on filing of form STK-2 when the company has not filed Form INC -22A, but considering your case, where the DIN of 2 directors are deactivated due to non-filing of DIR3-KYC, the company will not be able to file STK-2 for strike off.
      Further, in case of Winding up of Company also, the Company would be approaching the NCLT and regulators may raise query on same in case of deactivated DIN.
      Consequently, it is advisable to go proceed with the Filing of DIR-3 KYC of the other 2 directors before going for Strike off or Winding Up.

  11. Sir,
    My client has pvt ltd co. with two directors. now one of the director wants to resign and they dont want to appoint any new director.. sir what should be i do now

    1. Dear Sir,

      A private company cannot carry its business with only one director as it would lead to non-compliance of Section 149(1) of the Companies Act, 2013(“the Act”), where a private company is required to have atleast two directors. In your case, if the company wishes to proceed with single director only, it can opt for converting its private company into a One Person Company(OPC) as defined under Section 2(62) of the Act. An OPC can have single member who can also be director of the same company i.e. 1 director shall be required for an OPC.

      It should be noted that conversion of a private company into OPC is subject to the fact that your private company is eligible to be OPC, meeting the prescribed criterias in the Act(for details visit https://www.bsamrishindia.com/one-person-company-opc/)

      However, converting a private company into OPC shall also require atleast two directors at the time of conversion. Thus, if the company opts to convert into an OPC, we suggest that the existing director can resign after the said conversion and once the OPC is incorporated the remaining 1 director can continue in the said OPC.

  12. Dear Sir,
    A public limited company had 3 Directors, 1 directors resigned w.e.f from October 2018. There were Board Meetings conducted after October 2018 until May 19 with 2 Directors present who constituted a valid quorum. Will the board meetings will be invalid because constitution of Company was not correct even though the quorum was present? What about the EOGM conducted of the Company for which the notices were passed in the above Board Meetings

    1. Pursuant to Section 149 of the Companies Act, 2013, every public company shall have atleast 3 directors on board. However, as per Section 174, in cases where the composition falls below the minimum number as prescribed by the law, the remaining directors can continue to act only in the manner that is necessary to fix back the composition per law. Thus, in your case, if the Board meeting and EOGM were held in order to revive the composition of the Company i.e for the appointment of a new director, then the proceedings of the Board and General Meeting shall remain valid.

  13. Dear Team,

    We were two directors, And one of the director resigned and has removed his name from the pvt ltd company.

    At present i am the only director and i am told that i cannot add one more director unless he has a digital signature which has been issued to him 1 year back.

    Can i as the only director convert the present pvt ltd to one person company ?

    I am not not able to even close the pvt ltd company and i am not able to file balance sheet etc etc as i am only one director.

    Regards,

    1. Dear Sir,

      Since the composition of Board of Director is not proper as per the provision of Section 149 of the Companies Act, 2013 where in case of Private Company it is required to have at least two director on Board.
      As in your case one of the Director has resigned from the office therefore you are requested to kindly appoint one new Director on Board which can be done with your DSC, and complete all the statutory filing till date.
      Furthermore, if you want to strike off the Company you need to have the optimum composition of Board of Director before making application for the same.

  14. In my Pvt Ltd company, few years before 3of them invested ans started in the mid time 2 director stops there activity in the company 1partner committed to retune there investment, in 2years that one person returns and settle the investment with interest is there any role continue for these 2 investors in the company

  15. Pvt co having 2 shareholder.
    99.99%SHARES HELD BY FOREIGN CO.
    1 SHARE HELD BY DIRECTOR
    Beneficial owner (holding Co) is disclosed by filing form. with ROC
    Now director has resigned.
    Do we need to get that share transferred from him to the other person, even though beneficial owner is already disclosed earlier?

  16. Can two directors resign from a pvt ltd company (The company has 3 directors) which was incorporated in 2015 October and still active? Can 2 directors resign now? No financials submitted for the company from the date of incorporation..

    1. Directors can resign anytime they wish to do so. Their resignation is not subject to acceptance. However, please note that the Act states that a director, who resigns from the company, shall still be liable for offenses committed during his tenure as a director.

    1. DIN can only be surrendered in the following two cases:
      1. if the DIN holder has never been appointed as director or
      2. DIN has never been used for filing any document with any authority
      Since in your case, you have been appointed as a director, therefore, you can’t surrender your DIN.

  17. As on 31st March, 2018 there were 5 directors in company (Producer Company).. In July /Aug 2018 3 directors submitted their simple resignation letters. Company also appointed 3 new directors in their place, but unable to submit DIR 12 for removal of directors due to non KYC. Further the directors are not responding for DIRKYC due to dispute, what is the best way to remove the directors ? We have already discussed with our CA but no response.,..

    1. The provisions of producer Company are governed as per Sec 465 of the Companies Act, 2013 (581O of Companies Act, 1956); minimum 5 and maximum 15 directors. In the present case, the Company seems to have on ROC record 8 present Directors since the resignation of Directors will not be updated until the filling of DIR-12. Due to non-filling of DIR-3KYC, the DIN status is de-activated, hence, we cannot file DIR-12 either. Our suggestion would be to have a word with the Directors and intimate them that since the Directors have not filed DIR-11, they can still be treated as ‘Officer in Default’ in case of any violation by the Company. In case this does not work out, then you can submit an application with the ROC pleading the present case and request for re-activation of their DIN for the purpose of filling DIR-12

  18. In an indian company all the indian directors have resigned and its run by foreign directors. What are the consequences and time limit for appointing indian director?

    1. 1.Nationality is not a barrier per se for being appointed as a director in an Indian company. However, under section 149(3) [Resident Director], Companies Act, 2013 which mandates every company shall have at least one director who stays in India for a total period of not less than one hundred and eighty-two days during the financial year.
      2. However, there is no specific punishment provided for contravention of aforementioned section , but general penalty have been mentioned under section 172 [Punishment]of the Companies Act.
      3.As per circular(General Circular No. 25/2014 dated 26.06.2014). Companies incorporated after 30.9.2014 need to have the resident director from the date of incorporation itself.

  19. A company with 2 Directors of which 1 is Indian Director & the other is a Foreign Director. Bcoz of some internal issues the Indian Director resigned from the Board. The Foreign Director is not in India. What shall the company do in order to appoint new Director, and where shall the meeting be held. The same Directors are the only 2 shareholders of the company. Company has no other shareholder

    1. 1) As per our opinion, the best course of action will be , the remaining director to summon EGM and appoint director(s) to constitute required quorum in the Board.
      If calling EGM is not possible for any reason, the remaining director may call board meeting under section 174 (2) and can appoint additional director to constitute the required quorum in the board. Further, the additional director can be regularized in the coming AGM.
      Also note, appointing a resident director is mandatory.
      2) Board meeting can be held in the place where the quorum is physically present. In such case, except for the prohibited matters, director who is physically not available at the place of meeting can participate through Video Conferencing.

  20. Dear sir , one of Pvt LTD with only two directors , some dispute arised , and now one director has senr resignation. But another director not ready to accept , as such liabilities standing in the books. Also they have issued CCD and due in next 3-6 months. 1) can director resign without setteling liabilities.2) how to defend for this by remaining director. 3) can he complaint to ROC 4) can he also resign 5) can his form upload on site 5) if both directors resign then what happens to companies liabilities. Please advise

    1. Your query requires a detailed analysis of all the facts. Hence, we suggest you to seek a professional advice for your case.
      Nevertheless, we are here to serve you for your general queries.

  21. One of the director in a Pvt ltd compny was disqualified on 01.11.2016 due to one struck off compny. Now can his resignation resolution with dir12 be filed in today’s date or it must be filed around his disqualification date(01.11.16) with penalty?
    For appointing a new director in place of disqualified director: is can a director whose DIN is allotted in june 2018, be appointed as a director from November 2016 ?

    1. As the director was disqualified due to non-filing of the annual filing of the annual financial statement or annual return for a continuous period of three financial years, there is no requirement of filing of DIR 12, as his office was vacated as per the law.
      Furthermore, in accordance to Section 153 of Companies Act 2013, any director who intends to be appointed as a director of a Company must have a DIN, hence if the DIN was allotted in June 2018, he cannot be appointed from November 2016.

      1. Then how to appoint a director in November 2016, If company can’t appoint then how can a single director file annual filing of company of 2016-17 and 2017-18 ? Foe how many days a single director is allowed to run company. Pls suggest.

        1. You were required to appoint a director immediately after the vacation of office by the previous director. For further information kindly refer Section 174(2) of Companies Act 2013.

  22. All the directors of Pvt Ltd (100% subsidiary of a Foreign Co.) have resigned. Foreign company wants to abandon the Pvt Ltd, as it is. What are the duties of Foreign Company and it’s Board?

    1. As per sec. 168 (3) where all the Directors have resigned then the promoters or central government shall appoint the required no. of directors who shall hold office till the directors are appointed by company in general meeting. In given situation where foreign company wants to abandon it’s subsidiary company, be it striking off the name of company or transfer of shareholding, firstly appointment of directors on board is needed to finish the formalities.

  23. In private company one director is already disqualified out of two, what is the time period for appointing new director. Can Private Company run with one director for time being.

    Thanks in advance

    1. As per section 167(1)(a), the office of a director becomes immediately vacant if he incurs any disqualification specified in sec 164. Immediately after the vacation, the other director should summon a General Meeting only to appoint a new director and no other purpose (sec 174(2)).

  24. Mr.x resigned from the managing directorship of the company.He however wants to continue as a director in the company. Mr.x can continue as a director in the company?

    1. Yes he can continue as a Director in the Company. For that requisite resolution need to be passed by the Board subject to the approval of the members. Also, Form for change in designation needs to be filed with the ROC.

  25. Mr.x resigned from the directorship of the company.He however wants to continue as a director in the company. Mr.x can continue as a director in the company?

    1. Yes he can continue as a Director in the Company. For that requisite resolution need to be passed by the Board subject to the approval of the members. Also, Form for change in designation needs to be filed with the ROC.

  26. Sir,
    Can a promoter himself become a director if the company becomes directorless?If yes can he continue as director even after appointment of new directors in General meeting ? If promoter appoints directors can he appoint two directors at a time?
    Thank you

    1. In case the company becomes director less due to resignation or vacation, then the promoter shall appoint the required no. of directors who shall hold office till the directors are duly appointed by the company in general meeting only.

  27. Out of 3 directors in a. Pvt Ltd company, 2 wants to resign but the 3rd one is not ready to file form DIR 12. What to do in this case?

    1. The resigning directors must file DIR-11 with ROC with in 30 days from the date of resignation. The Directors who have resigned have performed their duty by filing DIR-11. Company, will bear the consequences for not filing DIR-12.

  28. Annual return of the year 2007 filed by a company wrongly shows 3 share holders with 5000 shares each with 15000 shares…instead of 2 share holders..with 10000 shares, however the transfer entry shown on the back side of that annual return is correct which shows 5000 shares have been transfered…In such case, is that annual return of 2007 considered as valid or invalid and if that is invalid can company file that annual return of 2007 again showing the correct no of share holders as 2 instead of 3?

    1. Any return with incorrect details is not treated as the valid submission of Statutory document. Company itself can go for NTBR (not to be taken in records) process to mark that form incomplete or defective and will file the revised annual return with fresh fees. NTBR application is to be made before MCA.

  29. sir, i am one of the share holder of a pvt ltd company.. My equity shares were illegally transfered in the year 2006 but that pvt ltd co. when i try to check the transfer entry in the Annual return of the yr 2006, it shows only form 20 b with an attachment of FILE1…which is totally blank…there is no annual return attached to that form 20 b.. under this circumstances, i cannot cross check any trasfer entry becoz the file1 is blank. can i complain about this to ROC to tell that pvt ltd company to again attach the annual return of 2006? what will happen to my share holdings becoz no transfer entry is shown and my shares have been transfered illegally?

  30. What is the maximum period within which promoters or CG, as the case may be, shall appoint directors in company? For how long a Company can practically work without directors?

      1. How to approach CG is there any online form or physical application to be done our promoter is company so how promoter can appoint Director

        1. As per Section 168(3) of the Companies Act, 2013, where all the directors resigns or vacate the office, the power to appoint the required number of directors is entrusted with the promoter of the Company or in his absence with the Central Government.

          The Internal Circular dated 6th October, 2017 issued by the Ministry of Corporate Affairs prescribes Standard Operating Procedure for the appointment of a new director in the vacant board of Non- compliant and active companies.

          As per the circular, promoter can issue the notice along with the explanatory statement for calling a general meeting for appointment of new director. Therefore, your promoter Company can appoint the directors by calling general meeting.

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