Liability of Directors under new Companies Act, 2013. Companies which are function through Board of Directors (Board) and the board plays an important role in complying with the requirements of Companies Act, 2013 (“New Act”). CA13 has enhanced the liabilities and obligations of the directors. CA13 regime prescribes management and inspection of documents in electronic form, electronic voting, electronic notices, etc that require a techno-legal compliance on the part of companies. The directors are under an obligation to comply with techno legal requirements of not only the New Act but also the Information Technology Act, 2000 and other related laws. CA13 has also increased monetary penalties and imprisonment. The civil and criminal liabilities are not just on directors but include “Officers in Default”. Article try to elaborate important aspects of CA13. Prepared by CS Pratik Shah, Practising Company Secretary.

1. CS Pratik K. Shah ACS, LL.B, B. Com
Practicing Company Secretary
| Address: 6, A Wing, Giriraj Society, Mamletdar Wadi Road No 6, Malad (West), Mumbai – 400 064 |
| Mobile: 76667 80060 | Email: cs.pratik@gmail.com |

2. CS Pratik K Shah Practicing Company Secretary
NOTE ON LIABILITIES OF DIRECTORS AS PER COMPANIES ACT, 2013
As we know that Companies function through board of directors and the board plays an
important role in complying with the requirements of the company law. The Companies Act,
2013 (“New Act”) has enhanced the liabilities and obligations of the directors. The new
company law regime prescribes management and inspection of documents in electronic form,
electronic voting, electronic notices, etc that require a techno legal compliance on the part of
companies. The directors are under an obligation to comply with techno legal requirements of
not only the New Act but also the Information Technology Act, 2000 and other related laws.
New Act has also increased monetary penalties and imprisonment. The civil and criminal
liabilities are not just on directors but include “Officers in Default”.
Let us understand these liabilities of Directors and terms of the New Act in detailed way.
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Meaning of Director
The term “Director” has been defined under Section 2 (34) of the 2013 Act to mean a director
appointed to the board of a company.
The New Act provides for different categories of directors, including, whole time directors,
managing directors, independent directors, nominee directors, alternate directors and women
directors.
The New Act for the first time recognizes the concept of an independent director (though the
Listing Agreement already provided for the same). The term ‘independent director’ means a
director other than a managing director or a whole time director or a nominee director and
who fulfills certain other criteria (such as relevant expertise, experience, integrity etc) as
provided under Section 149 of the 2013 Act.
Concept of ‘Officer who is in default’
As provided under the Old Act, the definition of the term “officer in default” includes
directors. Various penal provisions in the New Act, which seek to penalize a company’s
officers would accordingly include company’s directors and charge them for offences
committed under the Act. As provided under the Old Act, the definition of the term “officer
in default” includes directors. Various penal provisions in the New Act, which seek to
penalize a company’s officers would accordingly include company’s directors and charge
them for offences committed under the Act.
The term “officer who is in default” has been defined under Section 2 (60) of the New Act as:
“Officer who is in default” for the purposes of any provision in this Act which enacts that an
officer of the company who is in default shall be liable to any penalty or punishment by way
of imprisonment, fine or otherwise, means any of the following officers of a company,
namely –
(vi) every director, in respect of a contravention of any of the provisions of this Act, who is
aware of such contravention by virtue of the receipt by him of any proceedings of the board
or participation in such proceedings without objecting to the same, or where such
contravention has taken place with his consent or connivance.”
It is pertinent to note here that the term ‘officer in default’ now seeks to implicate every
director (including nominee director) who is aware of the contravention. He need not even

3. CS Pratik K Shah Practicing Company Secretary
participate in any meetings of the board, but if the information as to a contravention is
contained in any of the proceedings of the board received by him, he is deemed liable. Also,
in view of the aforesaid provisions, a director needs to ensure that any objection raised by
him at a board meeting is duly recorded in the minutes.
Duties of Directors – Section 166
The New Act has now codified directors’ duties under Section 166. The provisions of this
Section apply to all categories of directors, including independent directors.
Section 166 of the New Act stipulates the following:
a. Subject to the provisions of this Act, a director of a company shall act in accordance with
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the articles of a company.
b. A director of a company shall act in good faith in order to promote the objects of the
company for the benefit of its members as a whole, and in the best interests of the
company, its employees, the shareholders, the community and for the protection of
environment.
c. A director of a company shall exercise his duties with due and reasonable care, skill and
diligence and shall exercise independent judgment.
d. A director of a company shall not involve in a situation in which he may have a direct or
indirect interest that conflicts, or possibly may conflict, with the interest of the company.
e. A director of a company shall not achieve or attempt to achieve any undue gain or
advantage either to himself or to his relatives, partners or associates and if such director is
found guilty of making any undue gain, he shall be liable to pay an amount equal to that
gain of the company
f. A director of a company shall not assign his office and any assignment so made shall be
void.
The duties set out in this Section are not exhaustive. Apart from the duties set out in Section
166, directors are also responsible for various obligations provided under other Sections of
the 2013 Act. For example:
• The board needs to lay the financial statements for approval and adoption at the annual
general meeting of the shareholders (Section 129(2));
• The directors are responsible for devising proper systems to ensure compliance with the
provisions of all applicable laws and to ensure that such systems are adequate and are
operating effectively (Section 134);
• Director needs to ensure that the company complies with obligations relating to corporate
social responsibility provided under Section 135;
• The board is responsible for appointing first auditors (Section 139);
• A director needs to disclose his interest in a contract or arrangement with the company
(Section 184);
• A director is prohibited from engaging in forward dealing of securities (Section 194);
• The board is responsible for appointment of whole time key managerial personnel
(Section 203);
• The directors are responsible for issuance of notice and holding of board meetings and
general meetings etc.

4. CS Pratik K Shah Practicing Company Secretary
Contravention of provisions of Section 166 (relating to codified duties) is punishable with a
fine which shall not be less than Rs 1 Lakh but which may extend to Rs 5 lakhs.
Disqualification of Directors – Section 164
The Companies (Appointment and Qualification of Directors) Rules, 2014 have imposed
many obligations upon the directors of a company. Rule 14 (1) of the same prescribes that
every director shall inform to the company concerned about his disqualification under sub-section
(2) of section 164, if any, in Form DIR-8 before he is appointed or re-appointed.
Rule 14(2) states that whenever a company fails to file the financial statements or annual
returns, or fails to repay any deposit, interest, dividend, or fails to redeem its debentures, as
specified in sub-section (2) of section 164, the company shall immediately file Form DIR-9,
to the Registrar furnishing therein the names and addresses of all the directors of the
company during the relevant financial years.
Rule 14(3) states that when a company fails to file the Form DIR-9 within a period of thirty
days of the failure that would attract the disqualification under sub-section (2) of section
164.
Monitory Penalties and Imprisonment
Penal provisions throughout the New Act have been made more stringent and provide for
increased penalties as compared to the Companies Act, 1956. On an average, the minimum
amount of fine that is imposed under certain Sections is Rs 25,000 which in certain cases
extends to Rs 25 crores or even more.
Set out below is the list of few contraventions, where the penalties mentioned are Rs 1
crore or more:
a. Violation of provisions relating to not-for-profit companies (Section 8);
b. Violation of provisions relating to subscription of securities on private placement (Section
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42);
c. Issue of duplicate share certificates with an intent to defraud (Section 46 (5));
d. Failure to repay deposits within specified time (Section 74 (3));
e. Contravention of provisions relating to insider trading (Section 195 (2)).
Apart from monetary penalties, certain offences even attract imprisonment. Most of the
offences leading to imprisonment under the New Act are non-cognizable (that is would need
warrant to arrest) but there are certain serious offences which are cognizable in nature and
would not require a warrant to arrest. These offences are mainly connected to fraud or intent
to defraud. Some of such offences are listed below:
a. Furnishing of any false or incorrect particulars of any information or suppressing any
material information in any of the documents filed with the Registrar of Companies in
relation to the registration of a company (Section 7 (6));
b. Including in the prospectus any statement which is untrue or misleading in form or
context in which it is included or where any inclusion or omission of any matter is likely
to mislead (Section 34);
c. Fraudulently inducing persons to invest any money (Section 36);
d. Default under Section 56 relating to transfer and transmission of shares with an intent to
defraud;
e. Offences relating to reduction of share capital (Section 66).

5. CS Pratik K Shah Practicing Company Secretary
For detailed view, the Annexure A has been attached herewith which provides details about
sections deal with Imprisonment.
The company has the right to initiate legal action against directors, in case of breach of their
duties. Apart from this, the New Act has also introduced the novel concept of ‘class action
suits’ under Section 245. Under this concept, a group of shareholders (constituting a
minimum of 100 shareholders or such minimum percentage of total shareholders as may be
prescribed) can bring an action on behalf of all affected parties, against the company and/or
its directors, for any fraudulent or wrongful act or omission of conduct on its/their part.
Apart from the New Act, there are several other statutes, such as Negotiable Instruments Act,
Consumer Protection Act, which lay down increased liabilities on directors. In case of default
on the part of the Company, there are several instances where the complainant as a strategy,
would make all the directors party to the suit, to put pressure on the company. Once a director
is made a party, he will have to go through the time consuming and cumbersome court
procedures to prove his innocence. This will no doubt cause lots of hardship and
inconvenience to an innocent director.
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Conclusion
Becoming a company director has become a very serious business and should not be
undertaken lightly or unadvisedly. If you are invited to become a company director or are
already a director, it is very important that you understand your duties and responsibilities
and the potential consequences of their breach.
DISCLAIMER:
This material and the information contained herein are prepared by Pratik K Shah, Practicing
Company Secretary (“Author”) who is intended to provide general information on a
particular subject or subjects and is not an exhaustive treatment of such subject(s). Author is
not, by means of this material, rendering professional advice or services. While every care
has been taken in the preparation of this Note, it may contain inadvertent errors for which
Author shall not be held responsible. The information is not intended to be relied upon as the
sole basis for any decision which may affect you or your business. Author shall not be
responsible for any loss whatsoever sustained by any person who relies on this material.
Further, this Note is not intended for advertisement and/or solicitation of work.

6. CS Pratik K Shah Practicing Company Secretary
Annexure A
Monitory Penalties and Imprisonment under Companies Act, 2013
While sections which require monetary penalties can be compounded before the statutory
authorities, sections which details imprisonment cannot be compounded. Directors should
also note that such penalties are not limited by the “limited liability” concept. Hence,
Directors should give importance to corporate governance in proper manner.
Below are the few sections which deal with penalty of Imprisonment, if not complied.
Section Who is liable and the Civil/Criminal liability involved
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53- Prohibition on issue of
shares at discount
• Company-Fine- Not less than Rs. 1 lakh and may extend
to Rs. 5 lakhs
• Officer in default- Maximum imprisonment of 6 months
or Fine- Not less than Rs. 1 lakh and may extend to Rs. 5
lakhs or with both.
68(11)- Power of Company
to purchase its own
securities
• Company-Fine- Not less than Rs. 1 lakh and may extend
to Rs. 3 lakhs
• Officer in default- Maximum imprisonment of 3 years or
Fine- Not less than Rs. 1 lakh and may extend to Rs. 3
lakhs or with both.
71(11)- Debentures • Officer in default- Maximum imprisonment of 3 years or
Fine- Not less than Rs. 2 lakh and may extend to Rs. 5
lakhs or with both.
92(5)- Annual return • Company-Fine- Not less than Rs. 50,000 Thousand and
may extend to Rs. 5 lakhs
• Officer in default- Maximum imprisonment of six months
or Fine- Not less than Rs. 50,000 Thousand and may
extend to Rs. 5 lakhs or with both.
118(12)- Minutes of
proceedings of general
meeting, meeting of Board
of Directors and other
meeting and resolutions
passed by postal ballot.
• Any person found guilty of tampering with the minutes-
Maximum imprisonment for 2 years and Fine- Not less
than Rs. 25,000 but which may extend to Rs. 1 lakh
128(6)- Books of account,
etc., to be kept by Company
• Officer in default- Maximum imprisonment of 1 year or
Fine- Not less than Rs. 50,000 and may extend to Rs. 5
lakhs or with both.
129(7)- Financial statement • Officer in default- Maximum imprisonment of 1 year or
Fine- Not less than Rs. 50,000 and may extend to Rs. 5
lakhs or with both.
134- Financial statement, • Company-Fine- Not less than Rs. 50,000 and may extend

7. CS Pratik K Shah Practicing Company Secretary
Board’s report, etc to Rs.25 lakhs
• Officer in default- Maximum imprisonment of 3 years or
Fine- Not less than Rs. 50,000 and may extend to Rs. 5
lakhs or with both.
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167- Vacation of office of
director
• Director – Maximum imprisonment for 1 year or Fine-
Not be less than Rs. 1 lakh and may extend to Rs. 5 lakhs
or with both.
185(2)- Loan to directors,
etc.
• Company-Fine- Not less than Rs. 5 lakhs and may extend
to Rs.25 lakhs
• Officer in default- Maximum imprisonment of 6 months
or Fine- Not less than Rs. 5 lakhs and may extend to Rs.
25 lakhs or with both.
186(13) Loan and
investment by Company
• Company-Fine- Not less than Rs.25,000 and may extend
to Rs. 5 lakhs
• Officer in default- Maximum imprisonment of 2 years or
Fine- Not less than Rs. 25,000 and may extend to Rs. 1
lakh or with both.
188(5)- Related party
transactions
• In case of unlisted Company, be punishable with fine
which shall not be less than 25,000 rupees but which may
extend to 5 lakh rupees
57- Punishment for
personation of shareholder
• Such person in default- Minimum 1 year to Maximum 3
years imprisonment or Fine- Not less than Rs. 1 lakh and
may extend to Rs. 5 lakhs.
58(6)- Refusal of
registration and appeal
against refusal
• Such person in default- Minimum 1 year to Maximum 3
years imprisonment or Fine- Not less than Rs. 1 lakh and
may extend to Rs. 5 lakhs.
59(5)- Rectification of
register of members
• Company-Fine- Not less than Rs.1 lakh and may extend
to Rs.5 lakhs
• Officer in default- Maximum imprisonment of 1 years or
Fine- Not less than Rs. 1 lakh and may extend to Rs. 3
lakhs or with both.
Chapter-IV- Registration of
Charges
• Company-Fine- Not less than Rs.1 lakh and may extend
to Rs.10 lakhs
• Officer in default- Maximum imprisonment of six months
or Fine- Not less than Rs. 25,000 and may extend to Rs.
1 lakh or with both.
137(3)- Copy of financial
statement to be filed with
Registrar
• Company-Fine- Not less than Rs.1000 for every day in
default but not more than 10 lakhs
• Officer in default- Maximum imprisonment of 6 months
or Fine- Not less than Rs. 1 lakh and may extend to Rs. 5

8. CS Pratik K Shah Practicing Company Secretary
lakhs or with both.
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182(4)- Prohibitions and
restrictions regarding
political contributions.
• Company-Fine- 5 times of the amount of contribution in
contravention
• Officer in default- Maximum imprisonment of 6 months
and Fine- 5 times of the amount of contribution in
contravention
184(4)- Disclosure of
interest by director
• Such person in default- Minimum 1 year imprisonment
or Fine- Not less than Rs. 50,000 and may extend to Rs. 1
lakh or both.
187(4)- Investments of
Company to be held in its
own name
• Company-Fine- Not less than Rs.25,000 and may extend
to Rs.25 lakhs
• Officer in default- Maximum imprisonment of 6 months
or Fine- Not less than Rs. 25,000 and may extend to Rs.
1 lakh or with both
447- Punishment for fraud • Any person who is found to be guilty of fraud- Maximum
imprisonment of 6 months may extend to 10 years
• Such person also liable to fine which may extent to 3
times the amount involved.