2011 (8) TMI 967 - HC - Companies Law

Winding up - Official Liquidator filed an application seeking for taking cognizance of the offence committed by accused for not complying with the requirement of provisions of section 454 - notice came to be issued to all the directors and in response to the said notice other ex-directors filed statement of affairs but respondent did not file the statement of affairs. The respondent had submitted his resignation from the company in liquidation and as such was not a director at relevant point of time and he was not required to comply with demand made by Official Liquidator Held that - statement of affairs have been filed by ex-directors. Thereafter objections were notified by Official Liquidator and same was complied and directions was sought for by Official Liquidator against ex-directors by filing application has been fully complied and as such question of taking cognizance of the alleged offence against the respondent does not arise and also in view of the fact that respondent has resigned vide his resignation letter dated 2-1-2008 (with effect from 29-2-2008) produced along with statement of objections. instant application filed by Official Liquidator was to be dismissed.

Issues:
1. Non-compliance with section 454 of Companies Act, 1956.
2. Alleged offence by the accused.
3. Filing of statement of affairs by ex-directors.
4. Compliance with the requirements of the Companies Act.
5. Resignation of the respondent.

Analysis:
1. The Official Liquidator sought to take cognizance of the offence committed by the accused for not complying with the provisions of section 454 of the Companies Act, 1956. The Official Liquidator invoked sections 454(5) and 5(A) of the Companies Act to try the accused for the alleged offence. The company in question was ordered to be wound up, and the accused, a former director, failed to file the required statement of affairs as mandated by the Act within the specified timeframe.

2. The accused, in response to the summons, claimed that he had resigned from the company-in-liquidation before the relevant period and, therefore, was not obligated to comply with the demands made by the Official Liquidator. However, the Official Liquidator argued that the accused did not provide Form No. 32 to demonstrate the acceptance and filing of his resignation before the Registrar of Companies.

3. The court noted previous orders related to the compliance of ex-directors with handing over books of account and records of the company-in-liquidation. It was observed that the ex-directors had fulfilled their obligations except for obtaining certain signatures. The Official Liquidator had no further grievances against the ex-directors in this regard. The present application sought to take cognizance of the alleged offence against the respondent, who was an ex-director, for not filing statement of particulars, despite the fact that other ex-directors had filed their statements of affairs.

4. The court, after considering the arguments and submissions, dismissed the application filed by the Official Liquidator. The court found that the compliance requirements under the Companies Act had been met by the ex-directors, and the respondent's resignation before the specified period further negated the need for taking cognizance of any alleged offence against him. The court's decision was based on the lack of necessity to pursue the matter against the respondent due to his resignation and the compliance efforts of the ex-directors.

5. In conclusion, the judgment highlighted the importance of compliance with the provisions of the Companies Act, particularly regarding the filing of necessary documents and statements by directors of companies-in-liquidation. The court's decision to dismiss the application emphasized the significance of resignation timelines and compliance with statutory requirements to avoid legal repercussions.

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