1986 (12) TMI 315 - HC - Companies Law

Annual Return Penalty for not filing, Meetings and proceedings - Presumptions to be drawn where minutes duly drawn and signed, Dividend manner and time of payment of, Directors - Right of person other than retiring director to stand for directorship, Winding up Statement of affairs to be made to official liquidator, Winding up Statement of affairs to be made to official liquidator

Summary

Issues Involved:
1. Failure to file the statement of affairs under section 454 of the Companies Act, 1956.
2. Responsibility and liability of directors for maintaining statutory records.
3. Validity of the appointment of additional directors.
4. Punishment for the offence under section 454(5) of the Companies Act, 1956.

Detailed Analysis:

1. Failure to file the statement of affairs under section 454 of the Companies Act, 1956:
The company, M/s Technical Consultancy House (P.) Ltd., was ordered to be wound up on October 20, 1978, due to its inability to pay its debts. Following the winding-up order, the directors were required to file a statement of affairs as mandated by section 454 of the Companies Act, 1956. However, this was not done within the prescribed time. The official liquidator filed a complaint under section 454(5) against the directors, Kuldip Raj Narang and Mokan Singh, for failing to comply with this requirement. Despite notices sent to the accused, they did not file the statement of affairs, leading to the prosecution.

2. Responsibility and liability of directors for maintaining statutory records:
The court emphasized that the board of directors is collectively responsible for the management and conduct of the company's affairs, including the maintenance of statutory records. The accused argued that A.P. Sehgal, another director, was responsible for maintaining the records. However, the court found no evidence to support this claim. The court noted that the descriptions of directors as "director (organization)" or "director (finance)" did not absolve them of their collective responsibility. The court held that the directors could not escape liability by claiming ignorance or lack of involvement in the company's affairs.

3. Validity of the appointment of additional directors:
The case against Mokan Singh was different as he was shown as an additional director in Form No. 32 filed with the Registrar of Companies. His appointment was to continue until the next annual general meeting, and there was no evidence that his appointment was confirmed in any such meeting. Therefore, the court acquitted Mokan Singh, concluding that he was not a director at the time of the winding-up order.

4. Punishment for the offence under section 454(5) of the Companies Act, 1956:
The court found Kuldip Raj Narang guilty of failing to file the statement of affairs without reasonable excuse. The offence under section 454(5) is a continuing one, punishable with imprisonment for up to two years, or a fine of Rs. 100 for every day during which the default continues, or both. The court decided not to invoke section 360 of the Code of Criminal Procedure, 1973, which provides for release on probation of good conduct. Instead, the court imposed a fine of Rs. 50 per day from November 11, 1978, to December 19, 1980, totaling Rs. 38,500. In default of payment, Narang would undergo rigorous imprisonment for two months. The fine, when realized, would be payable to the official liquidator.

Conclusion:
The court held Kuldip Raj Narang guilty under section 454(5) of the Companies Act, 1956, for failing to file the statement of affairs and imposed a fine on him. Mokan Singh was acquitted as he was not a director at the relevant time. The judgment underscores the collective responsibility of the board of directors in managing the company's affairs and maintaining statutory records.