2012 (5) TMI 128 - HC - Companies Law

Application filed by the Official Liquidator to take cognizance of the offence committed by the respondent in not filing the statement of affairs - Held that - A perusal of the proceedings indicates that all the respondents other than respondent No. 3 have been discharged from the proceedings on different dates - considering the fact that the 3rd respondent has sought discharge from the instant proceedings on the ground that he had resigned, the same is a legal aspect - resignation letter filled to the office of Registrar is proof that he had resigned as a director of the company-in- liquidation thus no liability.

Summary

Issues:
1. Official Liquidator filing application under Section 454 of the Companies Act, 1956 for non-filing of statement of affairs.
2. Allegation against erstwhile directors for not complying with the requirement of law.
3. Discharge of respondents other than respondent No. 3 from the proceedings.
4. Contention by respondent No. 3 regarding resignation and not being required to file the statement of affairs.
5. Production of documents by respondent No. 3 to support resignation claim.
6. Discharge of respondent No. 3 from the proceedings leading to the disposal of the application.

Analysis:
The Official Liquidator filed an application under Section 454 of the Companies Act, 1956, alleging that the respondent, an erstwhile director of a company-in-liquidation, failed to file the statement of affairs as required by law. The company was ordered to be wound-up, and the directors were mandated to submit the statement within 21 days. The applicant contended that the directors did not comply with this obligation, leading to the request for cognizance and punishment of the accused directors.

Upon reviewing the proceedings, it was noted that all respondents except the 3rd respondent had been discharged from the case on different dates. The 3rd respondent argued that he was not obligated to submit the statement of affairs as he had resigned before the winding-up order. Supporting documents, including a resignation letter lodged with the Registrar of Companies, were presented by the 3rd respondent. The court acknowledged that the resignation was effective before the winding-up order, absolving the 3rd respondent from the requirement to file the statement of affairs. Consequently, the allegation against the 3rd respondent was deemed unsustainable, leading to his discharge from the proceedings.

The production of documents by the 3rd respondent, such as the resignation letter and related correspondence, substantiated his claim of resignation before the winding-up order. The court accepted these documents as evidence of the resignation, emphasizing that the resignation letter lodged with the Registrar of Companies was a crucial factor in determining the 3rd respondent's compliance with the legal requirements. As a result of the established resignation timeline and the lack of obligation to file the statement of affairs, the 3rd respondent was discharged from the proceedings.

The discharge of the 3rd respondent from the case had a consequential impact on the application, rendering it non-maintainable. With the main issue regarding the alleged non-compliance by the directors addressed through the discharge of the 3rd respondent, the application in question was disposed of, bringing the legal proceedings to a conclusion.