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Deletion of Directors or Partners

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A director is a person from a group of managers who leads or supervises a particular area of a company, program, or project. A person who is in charge of an activity, department, or organization.

Deletion of Directors or Partners

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POSITION OF DIRECTORS

Directors are agents- directors are the agent of the company. Consequently, where the directors enter into contracts on behalf of the company, it is the company and not the directors who are liable there under.

Directors as trustees- the office of a director is an office of trust. The directors stand in a fiduciary position towards the company. They are the trustees of the company’s money and property and of the power entrusted to them.

Directors as officers- amongst other persons, a director is also included in the definition of an ‘officer’ of the company

Whether or not a director is in the employment of the company, he shall always be treated as an officer of the company

Directors as employees- directors, as such as not employees or servant of the company. But where any directors, besides being directors, is also in the service or employment, he shall be treated as an employee of the company.

 

PARTNERS

Partners are persons (whether natural or artificial) who have subscribed their name to the incorporation document and further any new person can be admitted to the LLP as per the provisions of LLP Agreement. The LLP Act 2008 defines the term partner under Section 2(q) as “Partner”, in relation to a limited liability partnership, as any person who becomes a partner in the Limited Liability Partnership in accordance with the Limited Liability Partnership Agreement.

 

 

Who can be a Partner?

There should be atleast 2 persons (natural or artificial) required to form a LLP. In case any Body Corporate is a partner, than it will be required to nominate any person (natural) as its nominee for the purpose of the LLP.

Following can become a partner in the LLP:

a) Company incorporated in and outside India
b) LLP incorporated in & outside India
c) Individuals resident in & outside India

The Government of India has not yet notified the policy for Foreign Direct Investment by Individuals resident in & outside India in LLP form of business and therefore, till the date policy is announced, such persons cannot form a LLP in India.

Role of Partner

Section 26 defines the role of partner and states that, every partner of a Limited Liability Partnership is, for the purpose of the business of the Limited Liability Partnership, the agent of the Limited Liability Partnership, but not of other partners. It means that the relation of principal and agent is only between the LLP & its partners and not between the partners per se.

 

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DELETION OF DIRECTORS
  • A special notice under section 115 is required to be given to the company for removal of directors, at least 14 days before the date of meeting at which it is to be moved exclusive of the day on which notice is served and the day of meeting.
  • On receipt of notice of a resolution to remove a director, the company shall forthwith send a copy thereof along with a representation if any received from the director concerned and if a copy of the representation is not sent as aforesaid due to insufficient time or for the company’s default, the director shall be entitled to be heard on the resolution at the meeting.
  • Hold and convene a general meeting to remove a director by passing an ordinary resolution.
  • Advice the Chairman that the resolution can be moved only if the person who has given notice of the resolution is present and moves the same at the meeting and that the director sought to be removed has got a right of being heard at the meeting even if he is not a member of the company.
  • If the resolution is carried, inform the director concerned about that fact of his removal.
  • In the case of a listed company, inform the stock exchange/s where the securities of the company are listed about the removal of director.
  • File Form DIR 12 within 30 days of the removal of the director with the Registrar of Companies.

                                                                                                                              

DELETION OF PARTNERS
  • A partner can cease to be partner of a limited liability partnership in accordance with an agreement with the other partners and in accordance with the provisions of (section 25) of Limited Liability Partnership Act, 2008.
  • In case of absence of agreement with the other partners as to cessation of being a partner, a partner may resign by giving a notice in writing of not less than thirty days to the other partners of his intention to resign as partner.
  • LLP shall be required to (E-Form-4) of LLP Rules 2009, with Ministry of Corporate Affairs on www.llp.gov.in with the following attachments:
  • Resignation letter of the partner
  • The Form must be duly certified by certifying authorities as specified in the form.
  • This form shall be filed within 30 days of the admission of the new partner.
  • The form shall be accompanied by such fees as may be prescribed.
  • Further a person shall cease to be a partner of a limited liability partnership—


a.) on his death or dissolution of the limited liability partnership; or
b.) if he is declared to be of unsound mind by a competent court; or
c.) if he has applied to be adjudged as an insolvent or declared as an insolvent.

 

Deletion of Directors or Partners
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