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TMI Blog1976 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... en to the official liquidator on this matter and their replies have been annexed as annexures "E" and "F". The reply of Gajraj Singh is annexure "E", in which he states that he ceased to be a director on 11th February, 1969, when he submitted his resignation. He claimed to have handed over the complete charge to Shri R.L. Kohly, respondent No. 5, on 31st December, 1966. Similarly, there is a reply from respondent No. 2, Shri D.K. Mehra, stating that he had resigned on 14th January, 1969, and these facts had been noted in previous decisions of this court passed in C.P. No. 81 of 1969 on 24th November, 1969, and C.P. No. 53 of 1973 on 6th November, 1974. Notices of this application were given to the respondents but no one filed a reply. It was stated before me at the last hearing that some of the directors had resigned earlier and judgments would be shown to me. In this connection Mr. Satish Chandra has shown me a judgment passed by the Judicial Magistrate, First Class, Delhi, in case No. 315/3, concerning respondents Nos. 3 and 4. He has also shown me some certified copies of other judgments. From these judgments and certified copies of other documents filed in those cases, it app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to submit and verify the statement". Thus, there are two groups of persons mentioned in the sub-section. The first category consists of persons who were directors on the relevant date and also the manager or other chief officer of the company on that date. The relevant date is defined in sub-section (8) of section 454 as being the date of appointment of the provisional liquidator or the date of the winding-up order. In the present case, -1 have also got the main winding-up petition, C.P. 53 of 1973, before me, and note that therein the winding-up order was passed on the petition of the Registrar of Companies on 6th November, 1974. For the sake of completing the facts, I may mention that the ground on which the Registrar of Companies had sought the liquidation of the company was that there were disputes between the directors of the company who were shifting the responsibility for complying with these statutory requirements upon each other; there was a complete deadlock in the management of the company and no balance-sheet had been filed after 31st December, 1966. It was further stated that enquiries by the office and through the police had revealed that the company had suspended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analysis of the four classes included in this category is necessary. The first class consists of persons who are or who have been officers of the company. The directors are also within the category of officers, because the provision defining officers, section 2(30), includes a director, managing agent, secretaries and treasurers, manager or secretary, etc., in the definition. Thus, there can be no doubt that a director is an officer. The first sub-class, therefore, includes persons who are directors before the relevant date. Thus, this second category is wide enough to enable an order being passed against all directors whether they have resigned earlier or not. However, the official liquidator can only get a statement of affairs from them if the court gives a direction to this effect. The only problem with regard to the application of this definition is whether it is inconsistent with the fourth sub-class which applies to certain officers within one year of the relevant date. Coming to the second subclass, it is quite clear that it refers to persons who had taken part in the formation of the company at any time within one year before the winding-up order or appointment of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit a statement of affairs. In fact, the impossibility of getting a statement of affairs without giving a direction to a past director has been highlighted in the present case on account of the fact that all the directors claim to have resigned at least by 1969. The facts set out in the winding-up petition also show that the company became more or less defunct in 1966, and may not have functioned at all after 1967. As the winding-up order had been passed in 1974, the choice with the court is either to say that no statement of affairs need be filed or to give a direction to the previous directors who were there in 1969, or earlier, for submitting a statement of affairs. Therefore, the choice with the court in the present case is au unavoidable one. I would normally not direct a person who had not been a director of the company for more than 5 or 6 years before the winding-up order to file a statement of affairs. In the circumstances of this case, where all the directors have claimed that they have resigned 5 or 6 years before winding-up orders, such a direction seems to be unavoidable. It has been stressed by the learned counsel that I should go into the question as to who has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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