DATE:23/03/2020

BA LLB 6th SEM, LAW DEPARTMENT, GNDU RC, GURDASPUR, SUBJECT: Company Law.

Major Topic 1: Position of Directors.

A Director is an agent of the Company for the conduct of a business of the company. Directors
of a company have fiduciary relationship with the company as well as with the shareholders
when he acts as an agent or officers of a company. A company is a legal person who is
considered as a living only in the eyes of law. It’s a creation of law which lacks both body and
mind. It cannot act, just like a human being. It can act only through some human agency.
Directors are those persons through whom company acts and does business. They are
collectively known as Board of Directors. A company’s board of directors consist of persons
specialized in different branches of business administration such as accounts, finance, law,
banking, management etc., including few experts in the field of company’s business. Section 2
(34) of Companies Act the term Director refers to a person appointed to the Board of Directors.
Section 149 of the Companies Act, 2013 provides that every company shall have board of
directors consisting of individuals as directors and shall have a minimum number of 3 directors
in the case of a public company, two directors in the case of a private company and one director
in the case of One Person company and a maximum number of 15 directors.
Position of Directors
It is very difficult to define precisely the position of directors in a company. The Companies
Act, 2013, is also silent on this issue. Directors have been described sometimes as trustees,
sometimes as agents or sometimes as managing partners. They have some attributes of all of
them, but they are neither trustees nor managing partner in full sense of the term. The legal
position of directors can be discussed as under:

1. Directors as Agent: Directors are considered in the eyes of law as agents of the company for
which they act. The company by itself cannot do any activity, therefore it can act only through
directors and a relation of principal and agent is established between the company and the
directors. Wherever as agent is liable those directors would be liable; where the liability arises to
the principal then only the company shall be held liable. If the directors make contracts on
behalf of the company, then they shall not be personally liable provided they act within the scope
of their authority and not by themselves. In such a case, the company alone would be liable.
Directors are personally liable in the following circumstances:
a) Where the contract in their own names.
b) Where they use the company’s name incorrectly.
c) Where director’s exceeds their powers.
But the position of directors differs from that of the agents because an agent can enter into a
contract in his own name but a director cannot. Again an agent may not disclose the name of his
principal but a director must disclose the name of his principal. Hence, the directors are not
agents in the true sense.
2) Directors as trustees: The directors have also been described as trustees of the company.
They are trustees of the company’s money or property which comes into their hands or which is
actually under their control and of the powers entrusted to them. But in real sense, the position of
directors is differ from that of the trustees because a trustee can’t be an employee of the trust but
a director can be an employee of the company. Again, an artificial person can become a trustee
but an artificial person cannot become a director. As, only individual can be a director. Hence,
directors may better be considered as quasi trustee and not a full trustee.

3) Directors as officers: Under sec. 2(59) of the Companies Act, directors are liable to certain
penalties if the provisions of the Companies Act are not complied with. Moreover whether or not
a director is in the employment of the company, he shall be treated as an officer of the company.

4) Directors as employees: Although directors are agents of the company, they are not
employees or servants of the company. Hence they cannot claim their remuneration as a
preferential creditor in the event of winding up of a company under sec. 327 of the Companies
Act, 2013. But where any director, has also been in the service or employment of the company
as a secretary, manager, accountant or otherwise, then he will be treated as an employee. As
such he will be entitled to the remuneration and other benefits admissible to him as an employee
in addition to his rights as a director to sitting fee, etc.

5) Directors as managing partners: The directors are also sometimes described as managing

partners because like a partner of a firm, they manage the affairs of the company and they are
also usually important shareholders of the company. They perform various functions of
managing directors like allotting shares, making calls, forfeiting shares etc.
However, all the partners of a firm act on the principal of mutual agency. But it is not so in the
case of directors. A director has no authority to bind the other directors and shareholders.
Moreover, directors are subject to retirement by rotation whereas partners of a firm are not.
Hence, the directors are not managing partners in the full sense. Thus, directors are described as
trustees, agents or managing partners. The board of directors is the brain and the only brain of
the company and company is the body and therefore the company can act only through them.
*Note: After reading the whole topic kindly send your feedback on the behalf of all students of
your class.