2009 (4) TMI 460 - HC - Companies Law

Winding up - defendants did not submit the statement of affairs of the Company before the Official Liquidator within the time prescribed - Held that - The said Sri Mahendra Prasad, who had filed the Company Petition, has raised an absolutely frivolous claim merely with a view to mislead this Court with respect to the assets of Company under liquidation and in that effort, he is not alone, rather his brother, namely, Sri Naresh Kumar, has also made some contributions. Thus, it is held that Sri Mahendra Prasad was a Director of the Company on the relevant date and, hence, he was liable to file statement of affairs of the Company, but he was intentionally not done so for the reasons best known to him. Thus, the report petition, reply and supplementary affidavit at flags 20, 22, 22A and 22B are hereby disposed of accordingly.

Summary

Issues:
- Failure to submit statement of affairs after winding up order
- Ex-directors not cooperating with Official Liquidator
- Claim of resignation by ex-director
- Allegations of misleading the court regarding company assets

Issue 1: Failure to submit statement of affairs after winding up order
The case involves a company petition filed under the Companies Act, 1956, seeking the winding up of a company. After a winding up order was issued, the ex-directors failed to submit the statement of affairs of the company to the Official Liquidator within the prescribed time. The Official Liquidator filed a report stating the non-compliance and requested permission to proceed with prosecution against the ex-management under section 454(5) of the Act.

Issue 2: Ex-directors not cooperating with Official Liquidator
The ex-directors, particularly one of them, filed an application to be exonerated from submitting the statement of affairs and dropping the prosecution case against him. However, the court found that the ex-directors, including the petitioner, were not cooperating and intentionally avoiding their obligations. Despite claims of resignation, evidence showed that the ex-directors were still liable to submit the statement of affairs, but they failed to do so.

Issue 3: Claim of resignation by ex-director
One of the ex-directors claimed to have resigned from the company back in 1993 and provided documents to support this claim. However, the court found discrepancies in the evidence presented, including the lack of formal resignation filings with the Registrar of Companies. The court concluded that the claim of resignation was frivolous and an attempt to mislead the court regarding the company's assets.

Issue 4: Allegations of misleading the court regarding company assets
The court determined that the ex-directors, especially the petitioner, were engaged in misleading the court about the company's assets by not submitting the required statement of affairs. Despite claims of resignation and lack of liability, the court found the ex-directors responsible for the non-compliance and intentional evasion of their duties. The court disposed of the reports, petitions, and affidavits accordingly, emphasizing the seriousness of the ex-directors' actions.

In conclusion, the court held that the ex-directors' actions were intentional and aimed at misleading the court regarding the company's assets. The court rejected the claims of resignation and non-liability, emphasizing the ex-directors' obligations to cooperate with the Official Liquidator. The case will continue with further criminal proceedings based on the court's findings.