2019 (7) TMI 1191 - HC - Companies Law

Non-filing of Form 32 - cessation of the applicant from the board of the claimant company by the company - violation of Section 303 of the Companies Act - HELD THAT - In the absence of any other material on record, it is quite clear that the applicant ceased to be a director of the complainant company prior to the filing of the winding up petition. The present complaint would not lie against him - Application allowed.

Summary

Issues:
1. Application for deletion of a party from the array of parties in a criminal complaint.
2. Resignation of a director and non-filing of Form 32 under Section 303 of the Companies Act.
3. Obligation of a director to file a statement of affairs under Section 454(2) of the Companies Act.
4. Dispute regarding the effectiveness of resignation and filing of Form 32.

Analysis:

1. The applicant filed an application seeking deletion from the array of parties in a criminal complaint, stating that he resigned from the company before the winding-up petition was filed. The Registrar of Companies had filed a complaint against the company for non-filing of Form 32 regarding the cessation of the applicant's directorship. The applicant relied on SFIO's report to support his exoneration and requested removal from the parties' list.

2. The record confirmed the applicant's resignation from the company's board, which was acknowledged and accepted by the company. A complaint was lodged by the Registrar of Companies for non-filing of Form 32 under Section 303 of the Companies Act, concerning the applicant's directorship cessation. The company was also mentioned in the complaint for the same violation.

3. The Official Liquidator contended that under Section 454(2) of the Companies Act, the applicant, having been a director, could be directed to file a statement of affairs. However, the applicant cited a previous judgment to dispute this claim, emphasizing that the obligation to file a statement of affairs is tied to specific dates and circumstances, as per the Act.

4. The court referred to a previous case to determine the effectiveness of resignation and the necessity of filing Form 32. It was established that unless specified in the Articles of Association, a director's resignation becomes effective upon communication, not contingent on acceptance. The court concluded that the applicant ceased to be a director before the winding-up petition, rendering the complaint against him invalid. Consequently, the application for deletion from the array of parties was allowed, and the applicant was removed from the case.

In another related matter, where the facts mirrored the above case, the court allowed the application for deletion of the applicant from the array of parties. The cases were listed for further proceedings on a specified date.