Sachinsachin asked 7 months ago

Appointment of person given in special notice as per section-140(4) ,or say, agenda of special notice about requiring expressly that<span>  </span>retiring auditor shall not be re-appointed …. as per me, requires SR Not OR due to the following my reasoning …. i need you to plz confirm me whether i am right or wrong :- Sir ,aganda containing in special notices are called special business … and i guess special business need SR ? Even after reading section 139(9) … its seems clear … SR is needed in sec 140(4) … Even the name of the proposed auditor here u/s 140(4) is recommended by eligible member u/s 115 by special notice containing special business to be conducted at AGM which requires SR ,(&amp; note it ,the name is not recommended by AC/BOD i.e. the ussual process of selection of auditor under rule-3 of sec 139(1) which requires OR which is followed if no special notice is served on the company) … 

7 Answers
RaviRavi Staff answered 7 months ago

Dear Sachin
Special Notice doesn’t mean special resolution. All general meeting resolutions are ordinary resolutions unless specifically required by law. Further special business as nothing to do with special resolution, any resolution / agenda becomes special business if it is other than standard 4 ordinary business in AGM.
So special notice is not equal to special resolution neither special business will mean special resolution. 
It is well settled and undisputed point that ordinary resolution will be required for auditor appointment. Please see below link for Notice AGM, it will clear all your doubts.
https://hexaware.com/wp-content/uploads/2018/04/Notice-of-AGM.pdf

Sachinsachin answered 7 months ago

Okay thanks sir , i understood now where i was misunderstanding the law … i understand now special notice does not necessary mean special resolution to be passes neither the special business means requirement of special resolution … special notice just means for a particular matter the notice being given to comany is given by specified minmum people which is given under section 115 … my one more doubt remains is … Is there any harmonious construction of section-139(9) & 140(4) is possible ??? Through which the requirement of SR is required???
what if a special notice is served to the company for appointing as auditor a person other than retiring auditor u/s 140(4) and OR is passed at AGM for that persons appointment … will not the retiring auditor say the requirement of passing SR u/s 139(9)is not fullilled so i am not retired yet as i am willing m & i ll continue as the auditor until unless SR is passed.

Sachinsachin answered 7 months ago

Even, see , section 139(1) is applicable in case of if the name of person proposed to member to be appointed as auditor is through the route of AC/BOD … in the that case , it is eminent , OR is needed to be passed to appoint him …. whareas the name proposed of the auditor for the appointment u/s 140(4) is by members & not by AC/BOD …. 

Sachinsachin answered 7 months ago

What if the auditor to be removed is not the retiring auditor …. as he was appointed for the term of 5years and only 1 year is being passed ???

RaviRavi Staff answered 7 months ago

for removal of auditor before AGM — special resolution will be required
after removal for next auditor appointment — ordinary resolution will be required
for auditor appointment — special resolution will never be required

Sachinsachin answered 6 months ago

and what about removal of auditor by members “at” AGM …. what is required … SR or OR?

RaviRavi Staff answered 6 months ago

ordinary resolution
if removal is at EGM even before AGM then special resolution 

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