In a recent judgment CLB Kolkata bench has held that it shall be deemed that soon after the director communication to the company regarding his resignation , the said person shall cease to be a director of the company.
Case Law Details:
CP No. 186/2014
Petition under section 614 of the Companies Act, 1956
Mr. Pankaj Lohariwal vs M/s SRC Udyog Limited & Ors
Date of Order/Judgment: 13/01/2016
The Petitioner was aggrieved by the company in not filing form-32 for his resignation from the directorship
The petitioner prayed that a direction be issued to the respondent company and directors to file form-32 in respect of his resignation.
Brief Facts of the Case:
The petitioner, following a change in management of the company, resigned from board of directors vide his resignation letter dated 08/12/2012 expressing his desire to resign from the directorship with immediate effect. The said letter was duly received by the respondent company on 10/12/2012. In terms of the understanding, out of eight directors, four including the petitioner resigned from the company. However, the company filed e-form 32 with registrar of Companies (RoC) only for the three outgoing directors and the form 32 related to the resignation of the petitioner was not filed.
In the month of Nov-2013, the petitioner however came to know that his resignation has not been reported to RoC and he was still continuing as director of the respondent company. The petitioner immediately wrote a letter to the company and all existing directors to file the form-32 but the same was not filed.
Contentions of the Petitioner:
(a) That he had resigned by letter dated 08/12/2012
(b) That he had not attended any Board meetings since tendering of his resignation.
(c) That Articles of the company specifically provides that office of director shall ipso facto be vacated by service of notice in writing to the company .
(d) That the company ought to have filed form-32 and thus have defaulted.
Contentions of the Respondents :
(a) That the address of the company mentioned in the resignation letter was incorrect as the address was changes since long and was well known to the petitioner.
(b) The petitioner filed the petition almost after two years from resignation and has not explained the reasons for delay.
(c) That the signature and the seal of the company on the purported receiving of resignation letter was forged and the letter was never tendered to the company.
The Company law Board (CLB) noted that the change in the registered office of the company, if any was not intimated to RoC Kolkata and even the RoC , on the petitioner’s complaint had issued notice to the company at the same address.
It was held that since the petitioner resigned and duly communicated it to the company and also when the articles so provided, it shall be deemed that soon after the director communication to the company regarding his resignation , the said person shall cease to be a director of the company.
Since the company was subsequently wound up pursuant to order of Hon’ble Calcutta High Court, CLB issued direction to the official liquidator to file requisite e form-32 with RoC.