2000 (11) TMI 1131 - HC - Companies Law

Issues Involved:
1. Voluntary winding up and appointment of a voluntary liquidator.
2. Responsibility for handing over company assets and records.
3. Compliance with court orders regarding the submission of assets and records.
4. Legal implications of the directors' actions and the voluntary liquidator's role.
5. Examination of the directors under section 477 of the Companies Act.
6. Dismissal of charges against the directors under section 538 of the Companies Act.

Detailed Analysis:

1. Voluntary Winding Up and Appointment of a Voluntary Liquidator:
Ajanta Lucky Scheme & Investment (P.) Ltd. was brought under creditors' voluntary winding up by a special resolution passed on 27-9-1980, appointing Sushil Kumar as the voluntary liquidator. The Official Liquidator filed Company Petition No. 25 of 1982 under sections 440 and 515 of the Companies Act, 1956, for official winding up and removal of the voluntary liquidator. The court ordered the winding up and removal of the voluntary liquidator on 16-8-1984.

2. Responsibility for Handing Over Company Assets and Records:
In Company Petition No. 94 of 1991, the directors, Dharam Bir Bhalla and Arvind Bhalla, stated that they had handed over the assets, books of account, and records to the voluntary liquidator, Sushil Kumar. This was affirmed in their statements recorded on oath. The court directed the respondents to jointly and severally hand over possession of the assets and records to the Official Liquidator.

3. Compliance with Court Orders Regarding the Submission of Assets and Records:
The Official Liquidator's attempts to retrieve the records reached a dead-end, leading to Company Petition No. 29 of 1997, alleging that the directors were shifting their responsibility. The prayer was for the directors to be summoned, tried, and convicted under section 538 of the Act.

4. Legal Implications of the Directors' Actions and the Voluntary Liquidator's Role:
Section 538 outlines the offenses by officers of companies in liquidation, including failing to deliver up property or records to the liquidator. The learned counsel for the Official Liquidator argued that a voluntary liquidator is merely an agent representing the board of directors, and the directors' responsibilities are not negated by the appointment of a liquidator.

5. Examination of the Directors Under Section 477 of the Companies Act:
Company Application No. 668 of 1998 was filed to summon and examine the directors for particulars of Sushil Kumar. Despite notice, the directors continued to assert they had no information about Sushil Kumar's whereabouts.

6. Dismissal of Charges Against the Directors Under Section 538 of the Companies Act:
In Company Application No. 585 of 2000, the directors reasserted that all assets and records had been handed over to Sushil Kumar, who had executed a receipt on 27-9-1980. The court in Company Petition No. 93 of 1991 had already noted that the directors had filed the statement of affairs with the voluntary liquidator, and there was nothing to rebut this statement. The prosecution had not provided evidence to prove the directors were in possession of the records. The court concluded that the findings of fact from the previous order must be deemed final, and the prosecution under section 538 was misconceived.

Conclusion:
The court acknowledged the bona fides of initiating action against the respondents but found no material sufficient to establish the guilt of the directors. The proceedings were dismissed due to the prolonged unavailability of the voluntary liquidator, Sushil Kumar, and the finality of the previous findings. Company Application No. 585 of 2000 was allowed, and Company Application No. 668 of 1998 was dismissed.

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