2012 (6) TMI 224 - HC - Companies Law

Winding up directors Non filing of statement of affairs - non-compliance of requirements - criminal proceedings Held that - since the company was ordered to be wound up on 07.11.2005 at the first instance, in any event, the Directors had time till 28.11.2005 for the purpose of filing their statement of affairs. The question would therefore be as to whether there was any intervening circumstance between the said dates which has made it impossible for the respondents to file the statement of affairs? The records and documents relating to the company was also in the premises and has been taken over by the Bank, the first respondent has addressed a letter to the Manager, - These aspects would indicate that there was reasonable cause for the respondents in not complying with the requirement. nature of a criminal proceedings the benefit of reasonable cause is to be granted to the respondents since the facts in the instant case as noticed above would disclose that the respondents were prevented by reasonable cause from filing statement of affairs within the time provided in law and also the non-rectification was due to the very same cause which has still continued to exist. respondents are to be exonerated. application is accordingly disposed of.

Summary

Issues:
Non-compliance with Companies Act provisions regarding filing of statement of affairs by former directors of a company in liquidation.

Analysis:
The application filed under section 454(5) and (5A) of the Companies Act, 1956 seeks the court to consider the offense committed by the accused for not complying with the provisions of section 454 of the Companies Act. Respondent No. 3 has been discharged earlier, while Respondent No. 4 claims to have resigned as a Director before the company's winding-up in 2001. Respondents 1, 2, and 5 deny guilt, citing reasonable causes for non-compliance, such as the bank seizing property containing records. Evidence includes examination of witnesses and submission of documents by both parties.

The crux of the matter lies in whether the former directors made out a reasonable cause for not filing the statement of affairs within the stipulated time frame. The court examines the evidence presented, including the dates of winding-up and filing of statements, to determine the validity of the reasons provided by the respondents. Respondent No. 4's resignation is supported by evidence, relieving him from the obligation to file the statement of affairs. However, the court delves into the reasons cited by Respondents 1, 2, and 5 to justify their non-compliance.

Respondent No. 1 explains delays in filing the statement of affairs due to the bank seizing property and subsequent communication regarding the company's winding-up. Respondent No. 2 aligns with Respondent No. 1's reasons, while Respondent No. 5 claims lack of involvement in day-to-day affairs as a justification for non-filing. The court evaluates the evidence tendered by Respondent No. 1 as most relevant, considering its potential impact on the other respondents' actions.

The court scrutinizes the period between the company's winding-up and the deadline for filing the statement of affairs to assess any intervening circumstances preventing compliance. Evidence of the bank seizing property, including documents and records, supports the respondents' claims of reasonable cause for non-compliance. The court acknowledges the possibility of future actions by the Official Liquidator for asset evaluation or misfeasance allegations but grants the benefit of reasonable cause to the respondents in the current criminal proceedings.

Ultimately, the court exonerates all respondents, citing reasonable cause for non-compliance due to circumstances beyond their control. The proceedings are closed, and the application is disposed of accordingly.