2017 (6) TMI 879 - HC - Companies Law

Winding up proceedings - whether company under liquidation is never the owner of the property? - Held that - Till date, no Statement of Affairs have been filed and thus, the exdirectors have willfully and deliberately neglected to file Statement of Affairs with the Official Liquidator. It is further contended by the Official Liquidator that because of nonfiling of statement as provided under the provisions of the Act, the office of the Official Liquidator is in complete dark about the assets liability and records of the Company under liquidation and in facts as rightly contended by the Official Liquidator, the winding up proceedings are unnecessarily being delayed. Having heard Mr. Mishra, learned Official Liquidator and on perusal of the record as well as the statement made, the prayers prayed for in paras 7(a) and 7(b) of the application deserves to be accepted and is hereby accepted.

Summary

Issues:
1. Official Liquidator's request to ratify actions regarding possession of company assets
2. Official Liquidator's request to initiate criminal proceedings against ex-director for non-filing of Statement of Affairs
3. Delay in winding up proceedings due to ex-directors' non-compliance with filing requirements

Analysis:
1. The Official Liquidator sought the court's approval to ratify their decision not to take over the possession of the registered office and assets of the company in liquidation. The court noted the previous order appointing the Official Liquidator and directing the takeover of company assets. However, the Official Liquidator faced challenges as the premises were not accessible due to disputes regarding ownership and lease agreements. The court, after considering the Official Liquidator's submissions, approved the actions taken and ratified the decision not to take over possession.

2. Additionally, the Official Liquidator requested permission to initiate criminal proceedings against the ex-director for non-filing of the Statement of Affairs, a requirement under section 454(5) of the Companies Act, 1956. The Official Liquidator highlighted the ex-directors' willful neglect in filing the necessary statement, which hindered the liquidation process and delayed proceedings. Despite attempts to contact the ex-directors and reminders sent, no compliance was achieved. The court, upon hearing the Official Liquidator and reviewing the evidence, granted permission to initiate criminal proceedings against the ex-director for non-compliance.

3. The Official Liquidator emphasized the significant delay in the winding up proceedings due to the ex-directors' failure to file the Statement of Affairs as mandated by law. This non-compliance left the Official Liquidator unaware of the company's assets, liabilities, and records, impeding the progress of the liquidation process. The court acknowledged the Official Liquidator's concerns regarding the unnecessary delay caused by the ex-directors' actions and supported the Official Liquidator's request for approval to address the non-compliance issue. Consequently, the court accepted the Official Liquidator's prayers and disposed of the application accordingly, aiming to expedite the winding up proceedings and ensure compliance with legal requirements.