9911796707
TMI Blog1995 (5) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... g up proceedings were stayed on March 4, 1986, upon some conditions which are not fulfilled and consequently the stay order was vacated on March 11, 1988. In other words, the proceedings for winding up remained stayed for almost two years and it is not in dispute that the official liquidator did not hand over the possession of the company to the ex-management though he did not proceed with the winding up. During the period when the stay order was operative, the Haryana Financial Corporation (hereinafter called "the corporation"), which was a secured creditor of the company, exercising its powers under section 29 of the State Financial Corporation Act broke open the locks of the company premises and took possession of the factory and office and all other assets lying therein. The Corporation, however, prepared an inventory of the machinery installed in the factory premises which is exhibit DW-4/1 on the record. After the receipt of the winding up order, the official liquidator is said to have issued notices to the ex-directors of the company on July 28, 1989, calling upon them to file the statement of affairs of the company but in spite of this, they failed to do the needful as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s summoned from the junior technical assistant working in the office of the Registrar of Companies, New Delhi, and he produced two Forms 32, which are exhibits CW-2/1 and CW-2/2. These forms were submitted by the company to the Registrar of Companies showing Sarvshri Jagdish Gupta, Kuldeep Parkash and Pardeep Gupta as first directors as named in the articles of association. He also stated on the basis of the annual return dated March 31, 1981, that accused Nos. 1 to 3 were the directors of the company as on that date. There is no other Form 32 pertaining to the company on the record of the Registrar of Companies and the last annual return filed is up to the period ending March 31, 1981. The accused have also led evidence in their defence and appeared as their own witnesses. Pardeep Gupta appeared as DW-1 and stated that the books of account and other statutory books and records of the company were at its registered office and that he was not in possession of those records. He also stated that he filed an affidavit exhibit DW-1/1, dated February 7, 1986, before the official liquidator stating that the records of the company were not with him. He further stated that his father-in-l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebruary 9, 1986, on receipt of the winding up order from this court but he did not prepare any inventory which he should have done. ( ii )The winding up proceedings were stayed by this court on March 4, 1986, on a petition filed by the ex-management of the company. ( iii )The stay order was vacated on March 11, 1988, and during the period when the stay order remained operative, the official liquidator did not hand over the company to the ex-management. ( iv )The Haryana Financial Corporation broke open the locks put by the official liquidator and took possession of the factory and office of the company and everything lying therein on November 2, 1987, and prepared an inventory which is exhibit DW-4/1. A bare perusal of the inventory, exhibit DW-4/1, shows that the books of account and other statutory records of the company are not mentioned therein. It can, therefore, be presumed that those were not in the factory premises on November 2, 1987, when the corporation took possession of the premises. Earlier to this, the official liquidator put his locks on February 9, 1986, and sealed the premises but unfortunately he did not prepare an inventory. Had he prepared an inventory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made an essential ingredient of the offence under the section. In Official Liquidator, R.S. Motors P. Ltd. v. Jagjit Singh Sawhney [1974] 44 Comp Cas 381 (Delhi) it has also been held that any excuse that would reasonably suggest that the accused could not comply with the provisions of law is a reasonable excuse within the meaning of section 454(5) of the Act. It is for the prosecution to initially prove that the books and records of the company from where the statement of affairs could be prepared were available or accessible to the directors and that in spite of that they did not file the statement of affairs. If the prosecution succeeds in discharging this onus, it is then only that the accused have to show that they had some reasonable excuse for not complying with any of the requirements of section 454 of the Act. In the instant case, there is no evidence that the books were available with the accused. As a matter of fact, there is no evidence to show as to where the books were though Pardeep Gupta accused claims that those were at the registered office of the company from where they have not been found. If the liquidator had prepared the inventory when he sealed the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
