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TMI Blog2003 (10) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... rement. If the date of communication of the intention to resign is taken into consideration and if that date happens to be anterior to the winding up order, such director who has resigned is under no obligation to comply with section 454 of the Act, as such no action could be taken u/s 454(5) and (5A) of the Act. In that view of the matter, in the instant case, the applicant resigned from the Board on 5-7-1995 which resignation was accepted on 8-9-1995. The winding up order was passed on 15-11-1999. Therefore, on the date of winding up order he was not a Director of the Company, as such he was under no obligation to comply with the statutory requirement as contemplated u/s 454 of the Act. Therefore, the action taken by the Official Liquidator against the applicant-Director for non-compliance of sections 454, 538(1)( a )( b )( c ) of the Act is one without jurisdiction and therefore, the same is liable to be ordered to be dropped. Consequently, the applications filed by the applicant for deleting his name are allowed. Hence, I pass the following order : The Official Liquidator is directed to delete the name of the third respondent from the applications which he has filed for non-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst him. 5. Opposing the said application, the Official Liquidator has filed his statement of objections. It is stated in the said objections that the applicant was appointed as a Director on 8-8-1990 and the records maintained with the Registrar of Companies shows that he continues to be the Director; company has not filed Form No. 32 under section 303 of the Companies Act as required under law. Therefore, it cannot be said that the applicant ceased to be the director of the company. The affidavit of another Director of the Company cannot be relied upon to relinquish any liability of the other Director. Therefore, he has sought for rejection of the said applications. 6. The respondent-company was ordered to be wound up by this Court on 15-11-1999. The Director of the Company who is incharge of the affairs of the company under liquidation has sworn to an affidavit stating that the applicant has resigned from the Board as per his letter dated 5-7-1995 which was duly accepted on 9-8-1995. But, due to inadvertence Form No. 32 was not filed. The said fact is also clear from the annual report of the Company for the year ending 31-3-1995 where the name of the applicant is not shown. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II of the Companies Act deals with constitution of Board of Directors and section 252 provides for minimum number of directors and section 253 states that only individuals should be the directors. Section 254 provides in default of and subject to any regulations in the articles of a company, subscribers of the memorandum who are individuals, shall be deemed to be the directors of the company, until the directors are duly appointed in accordance with section 255. Section 255 provides for appointment of directors. It categorically states that the directors are appointed by the company in general meeting and this appointment is for a particular period. Section 264 deals with consent of candidate for directorship to be filed with the company and consent to act as director to be filed with the Registrar. Every person other than a director retiring by rotation or otherwise or a person who has left at the office of the company a notice under section 257 signifying his candidate for the office of a director proposed as a candidate for the office of a director shall sign and file with the company his consent in writing to act as director, if appointed. Section 274 deals with disqualificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular period. If a director after being so appointed absents himself from three consecutive meetings of the Board of Directors, or from all meetings of the Board for a continues period of three months, whichever is longer, without obtaining leave of absence from the board, the office a director shall become vacant in terms of section 283( g ) of the Act. Therefore, it is clear a Director ceases to be a director of a company by the happening of the aforesaid event. There is no question of anybody declaring that director has ceased to be a director or anybody recognizing such a vacancy by any overt act. As the appointment of a Director is not a bilateral character, the question of acceptance of the request to relinquish the office would not arise. Filing of Form No. 32 in terms of section 303(2) of the Act is only a consequential act to be performed by the company in obedience to the statutory provision. If such a form is filed with the Registrar of Companies it is a proof of a Director ceasing to be a director. But, it is not an act to be complied with in order to make a resignation valid. Therefore, as the resignation by a director relinquishing his office as such director is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year anterior to the date of the winding up order would be called upon to furnish such particulars. But, if a person has ceased to be director of the company either on the date of the winding up order or one year before the date of the winding up order then no action could be taken against him under section 454(5) for non-compliance with section 454(1) of the Act as there is no statutory obligation cast on such director to comply with the said requirement. If the date of communication of the intention to resign is taken into consideration and if that date happens to be anterior to the winding up order, such director who has resigned is under no obligation to comply with section 454 of the Act, as such no action could be taken under section 454(5) and (5A) of the Act. 14. In that view of the matter, in the instant case, the applicant resigned from the Board on 5-7-1995 which resignation was accepted on 8-9-1995. The winding up order was passed on 15-11-1999. Therefore, on the date of winding up order he was not a Director of the Company, as such he was under no obligation to comply with the statutory requirement as contemplated under section 454 of the Act. Therefore, the action ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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