Remedy available to Director whose e-form for resignation is not being filed by Company

ARTICLE SERIES 15 CS Gurminder Dhami

REMEDY AVAILABLE TO DIRECTOR WHO HAS

RESIGNED AND THE COMPANY IS NOT FILING E-
FORM DIR-12 WITH ROC
Link of Related Articles:

1. Whether resignation of Director is subject to approval / acceptance.

1. Precautions to be taken by a Director while resigning.

Introduction –
The nitty-gritty involved while resignation from the post of Director of a Company, precautions to
be taken while resigning have been discussed by the author is separate articles link of which have
been provided above.

Now, despite of all the precautions taken there are chances that a Company is not filing the e-
form DIR-12 with ROC.

This article focuses on remedies available with a resigning Director in case the Company is not
filing e-form DIR-12 with ROC.

Remedies –
The remedies given herein below are according to the author, put in a logical sequence and
therefore it is advisable to exhaust the first remedy and even if still the issue persists then move on
to the next available remedy.

Remedy 1 – File e-form DIR-11 with ROC & Send correspondence to the Company

In case the Company has not filed with ROC e-form DIR-12 intimating resignation within the
stipulated time period of 30 days in Section 168 of Companies Act, 2013, the resigning Director
should immediately proceed for filing e-form DIR-11, if not already filed.

Thereafter, the resigning Director may serve the Company and all its Directors with a reminder
letter along with the copy of e-form DIR-11 filed with ROC.

(FORMAT of a sample reminder letter is placed at this weblink)

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Remedy available to Director whose e-form for resignation is not being filed by Company

ARTICLE SERIES 15 CS Gurminder Dhami

Remedy 2 – File complaint with ROC in e-form SCP (Serious Complaint Form)

That even after sending of reminder letter to the Company, the Company has not filed e-form DIR-
12 with ROC, then the resigning Director should file e-form SCP (Serious Complaint Form) with
ROC. The e-form SCP allows a resigning Director to file complaint against the Company who
is not filing the resignation of Director.

The practical guide as to information required to be mentioned in the e-form SCP is as follows:-

Particulars of e-form SCP Values

Details of the Complainant Name, Address, Phone & e-mail id.

Details of the Company Enter CIN to pre-fill details.

Nature of Complaint Select the option “Cessation of director”

Status of Complainant Select the option “Other”

Particulars of Resigning Director Enter DIN & pre-fill, enter Designation,

e-mail id, reasons of cessation and other
remarks, if any.

Particulars of Complaint Enter the details of the complaint being

made in brief here along with other
remarks, if any.

Attachments 1. ID Proof of Complainant.

2. Correspondence with Company
regarding the resignation.

Here it is advisable to prepare a complaint letter and explain all the facts therein and attach all
the relevant documents to substantiate the complaint. In this letter ROC should be requested to
initiate appropriate actions against the Company (call information & documents u/s 206, direct
to file e-form DIR-12 and also adjudicate penalty for the default u/s 454)

(FORMAT of a sample complain letter to be filed with ROC is placed at this weblink)

Thereafter, it is advisable to submit physical copies of all the above documents with form SCP and
challan with ROC office, make representation and follow-up the matter with ROC so that the ROC
takes action in this regard.

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Remedy available to Director whose e-form for resignation is not being filed by Company

ARTICLE SERIES 15 CS Gurminder Dhami

Situations which may arise while exercising Remedy No. 2 above

x
COMPLAINT FILED WITH ROC & ROC TREATS THE COMPLAINT as

Valid Action initiated by ROC u/s 206(1) – SCN issued to Co. Invalid
asking for furnishing information and/ or documents.

Reply recd., which is

Reply not recd.

Not Satisfactory Satisfactory

ROC shall

ROC may

call for further info. / docs after recording reasons in writing

NOT call for ......

Reply recd

Satisfactory
Not Satisfactory & since the offence punishable with fine only

AND
ROC shall direct to file DIR-12 ROC may also initiate
adjudication proceedings u/s
454 and impose penalty
NOT Filed
ROC will not take action
Penalty NOT paid Penalty paid
against the Company

ROC may launch prosecution by writing to

Special Court u/s 435 and if found guilty Court
shall Direct to file DIR-12 and impose fine
Seek other remedial recourse

NOT filed ROC shall file for

DIR-12 FILED contempt of Court order

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Remedy available to Director whose e-form for resignation is not being filed by Company

ARTICLE SERIES 15 CS Gurminder Dhami

Remedy 3 – Send a legal notice to the Company

That while pursuing as per remedy 3 above, it comes to conclusion that the ROC will not take
action against the Company (refer chart above) and if the Company has still not filed with ROC e-
form DIR-12, then it is advisable that before instituting legal proceedings, a legal notice is sent to
the Company and all its Directors.

It is always advisable to send a legal notice first before institution of legal proceedings because
litigation is costly and lengthy affair.

Also sending a legal notice reduces the initial time taken at Court / Tribunal proceedings during
admission of the case because –
 the respondent(s) are aware of the fact that a case maybe be filed against them, if they do not
resolve the issue and thus may not ask for time from the Court / Tribunal to file their reply.
 The Court / Tribunal would also in this case, not be inclined to give the respondents lengthy
time to file their reply.

(FORMAT of a sample legal notice to be sent to the Company is placed at the following weblink)

Remedy 4 – File Petition with Hon’ble NCLT

Despite all the tedious and rigours efforts if the Company still does not file e-form DIR-12, then the
resigning Director should drag the Company to the appropriate legal forum to seek justice. Here the
resigning Director should also demand for damages, litigation costs and compensation for
harassment and mental agony.

The resigning Director in the petition under Section 168 and Section 170 read with Section
172 should, inter-alia, seek the following relief(s) :-

i. To direct the respondent(s) to file e-form DIR-12 with the office of Registrar of Companies.

ii. To direct the respondent(s) to place the fact of petitioner(s) resignation on the website of the
Company.

iii. To direct the respondent(s) to intimate the fact of petitioner(s) resignation to all the bankers,
vendors, dealers, agents and other stakeholders.

iv. To take appropriate penal actions against the respondents for non compliance of Section 168
and Section 170 read with Section 172, for not filing the e-form DIR-12 within stipulated
time period and for not making entries of particulars of resignation in register of Director.

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Remedy available to Director whose e-form for resignation is not being filed by Company

ARTICLE SERIES 15 CS Gurminder Dhami

v. To take appropriate penal actions against the respondents for non compliance of Section 189
for not making entries of particulars provided by the petitioner Director u/s 189(2) in the
register of contracts or arrangements in which directors are interested.

vi. To take appropriate penal actions against the respondents for non compliance of Section 134
read with Section 168, for not mentioning the fact of resignation of petitioner in the ensuing
Board’s Report layed at the AGM.

vii. To direct the respondents to revise the Board’s report in compliance with the provisions of
the Companies Act, 2013 and also intimate all the shareholders about the fact of resignation
of petitioner.

viii. To take appropriate penal actions against the respondents for non compliance of Section 92,
for not mentioning the fact of resignation of petitioner in the Annual Return (MGT-7) with
ROC.

ix. To direct the respondents to revise the Annual Return (MGT-7) and file the revised return
with ROC.

x. To direct the respondents to pay a sum of Rs. --------------------- /- as damages and

harassment and Rs. -----------------------------/- towards the litigation costs.

xi. To direct the respondents to keep the petitioner indemnified at all times, against all liabilities
including cost of defending any proceedings, which might arise from any proceeding filed
by any person against the petitioner, believing the petitioner to be a Director in the Company
during the period starting from the date of actual resignation of the petitioner and till the
date of filing of e-form DIR-12 by the Company.

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Disclaimer: The entire contents of this article have been prepared on the basis of relevant
provisions, judgements and information existing at the time of preparation. The
observations of the author are personal view and the author does not take any
responsibility of the same and this cannot be quoted without the written consent of the
author.

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