Before answering the question how to Resign as Company Director , let’s first understand the background of the Forms DIR11 & DIR 12 w.r.t
- Who has to file?
- When it has to be filed?
- Why it has to be filed?
1. DIR 11 – Resignation by Director (Section 168 of the Act) and intimation to ROC by director:
Company Director
Section 168 of the act contains provisions related to
Resign as Company Director. Section 168(1) provides that a director may resign from his office by giving a notice in writing to the company. Board shall take note of such notice on its receipt. Resignation of director shall be effective from the date on which notice is received by the company or any other date specified by director in the notice, whichever is later. [(Section 168(2)]
Due date: Where a director resigns from his office , he shall within a period of thirty days from the date of resignation, forward to the Registrar a copy of his resignation along with reasons for the resignation in Form DIR-11along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014.
2. DIR 12 – Intimation of changes in particulars of directors(appointment/ resignation) by company to ROC:
The Company shall intimate the ROC about resignation of director within 30 days from date of receipt of notice inform DIR-12 and shall also publish the information about resignation on its website. (Section 168(1) of the Act read with Rule 15 of Companies (Appointment and Qualification of Directors Rules, 2014) Company shall also place the fact of such resignation in director’s report to be laid in the immediately following general meeting.
3. Why DIR-12 Should be Filed First?
When a director files eForm DIR-11 for intimating about his resignation before the company files eForm DIR-12, an email will be sent to the company for filing the eForm DIR-12 and the status of the Director in the company will be changed to ‘Resigned’ against the selected designation. Once the company files the relevant eForm DIR-12, the status shall be changed in MCA system.
It is however recommended to file eForm DIR – 12 first and then Form DIR-11 when there is a complete vacancy in the office of board of directors. It is because, if in case of there are only two directors in a company, the directors who file DIR-11 will be resigned from the company and there will be no designated director to sign on behalf of the company to file the eForm DIR 12 for Appointment of New directors.
The form DIR-12 is designed in such a way that atleast one of the existing directors should be made available to sign the DIR-12 forms prior to filing DIR-11
4. Consequences of DIR-11 before DIR-12:
If all the directors file their DIR-11 before the company files its DIR-12 then the DIN of the retiring directors tagged to the company in which they are retiring will be de-activated.
Once DIN is untagged to the CIN of the company the form DIR-12 will not allow the existing directors to sign the form. Thus new directors cannot be appointed effectively.
What is the solution?
In case DIR-11 is filed before DIR-12, a letter of request shall be sent to the ROC office with all the necessary supporting documents to temporarily enable the DIN to be tagged to the CIN of the company to enable filing ofDIR-12.
The said process is to be taken offline and will take time.
To avoid this, it is recommended to file DIR-12 before DIR-11.
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