9911796707
TMI Blog1993 (10) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ator has become the liquidator of the company under section 449 of the Act. It is further stated that notice was issued under sections 454 and 456 of the Act to the respondent herein on January 16, 1990, to submit the statement of affairs and also to deliver possession of the assets, books and papers of the company and that in spite of that notice, the statement of affairs has not been filed by the respondent herein. It is further stated that under letter dated January 8, 1990, the respondent informed that he had resigned as director of the company with effect from September 19, 1981. It is asserted that under section 454 of the Act, the erstwhile directors of the company are officers of the company "and, therefore, he is duty bound to file the statement of affairs with the official liquidator within 21 days from the date of winding up of the company". It is stated that the respondent herein did not comply with the requirements of section 454 of the Act and that, therefore, he had committed default in complying with the statutory requirements of sub-sections (1), (2) and (3) of section 454 of the Act though sufficient time and opportunity had been given, and, therefore, he is punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is made out against the respondent for requiring him to file a statement of affairs of the company. In the affidavit of the official liquidator filed in support of the present company application it is not categorically stated that the respondent was a director of the company on the relevant date, i.e. , on November 17, 1989. On the other hand, the official liquidator seems to accept, and at any rate does not dispute, the statement of the respondent that he ceased to be a director of the company from September, 1981. In the circumstances, the official liquidator is not right in stating that the respondent was duty bound to file the statement of affairs of the company within 21 days from the date of winding up of the company. A reading of sub-sections (2) and (3) of section 454 makes this clear. The said sub-sections are as follows : "(2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the manager, secretary or other chief officer of the company, or by such of the persons hereinafter in this sub-section mentioned, as the official liquidator, subject to the direction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement does not depend upon any direction of the court or a notice from the official liquidator requiring them to submit and verify the statement. In the case of all others falling under the second category mentioned above, the duty to submit and verify the statement arises only when there is a direction of the court or when the official liquidator issues notice requiring them to submit and verify the statement. I am also of the view that the time limit specified in subsection (3) can have application only to the officers of the company falling under the first category mentioned above, i.e. , those who are directors of the company on the relevant date and the manager, secretary or other chief officer of the company on the relevant date, because their obligation to submit and verify the statement springs into existence from the relevant date and does not depend upon any direction of the court or notice from the official liquidator. I am supported in this view by the judgment of a Division Bench of the Kerala High Court in P.M.A. Nambudiripad v. Official Liquidator [1979] 49 Comp. Cas. 81 wherein the learned judges observed as follows (at page 85) : "We need only point out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 454 ( 2 ) . The official liquidator may apply by summons to the court for an order directing any person who, in his opinion, is liable to furnish a statement of affairs under section 454, to prepare and submit such a statement or concur in making the same. Notice of the application shall be served on the person against whom the order is sought. Where the court makes the order, such order shall be in Form No. 56 with such variations as may be necessary." Form No. 56 referred to in rule 125 provides for the manner in which the order of the court is to be communicated by the court to the person to whom the direction is given. The time within which the person to whom the direction for submitting and verifying, etc., a statement of affairs of the company is given is to submit the same, has to be mentioned. The said order may also require the person to attend on the official liquidator at his office at such times as the official liquidator may appoint and give him all the information that he requires as to the affairs of the company. When a notice to submit a statement is issued to a person by the official liquidator under rule 124 or when an order is issued in Form No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at page 85) : "While clauses ( b ) to ( d ) of sub-section (2) of section 454 mention a period of one year preceding the relevant date as the period during which the persons referred to therein shall have fulfilled the requirements stated therein, clause ( a ) does not specify any such period nor does it refer to any date. There can be no doubt that clause ( a ) is comprehensive enough to rope in any person who at any time was an officer of the company." In Lahshman Narayan Arora v. Registrar of Companies [1980] 50 Comp. Cas. 536 also a similar contention was advanced before a Division Bench of the Patna High Court. It was contended that section 454(2)( a ) and ( b ) were inartistically drafted and the expression "at any time within one year of the relevant date" as was mentioned in the last part of clause ( b ) must also govern clause ( a ) and that if the words "at any time within one year of the relevant date" were not imported into clause ( a ), it would result in monstrosity. That contention was rejected by the Patna High Court holding as follows (at page 541) : "It is not possible to accept the submissions made. As pointed out earlier, apart from the directors, man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed and it appeared that there was nobody who could be called upon to file the statement of affairs as none was a director on the relevant date. The Division Bench of the Delhi High Court has held as follows upholding the view of the learned single judge (at page 705) : "Analysing section 454 of the Companies Act, the learned judge, therefore, came to the conclusion that it could not be envisaged that nobody could be called upon in such a situation to file a statement of affairs of the company and so, the ex-directors of a company who resigned even more than one year before the winding-up order could be directed to submit a statement of affairs. We are in agreement with the approach of the learned judge that sub-section (2) of section 454 speaks of two categories of persons first, persons who are, on the relevant date, the directors or other officers of the company and, second, such persons other than the first category whom the official liquidator, subject to the directions of the court, may call upon to submit and verify the statement of affairs. The second category is comprised of persons, inter alia, mentioned in clause ( a ). Therefore, ex-directors of the company who r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a statement of affairs is an exercise in futility and we see no reason why a mere academic order should be passed. It has been urged that even past officers may be able to give valuable information and section 454(2)( a ) in terms talks of past officers. So, the date of resignation of the appellant is immaterial. There is some force in this contention but in the circumstances of this case we do not see how any useful information or rather any information at all can be furnished by the appellant. As has been held by D.K. Kapur J. in Official Liquidator, R.S. Motors P. Ltd. v. Jagjit Singh Sawhney [1974] 44 Comp. Cas. 381 ; [1974] ILR 1 Delhi 243, if the books of the company are not available to a director who is required to file a statement under section 454, then it will be a reasonable excuse for him for not submitting the statement of affairs of the company ordered to be wound up in a prosecution launched against him for failure to file the statement of affairs. The appellant, as we have already noticed, has been held not to be in a position to have access to the books of the company ever since he was ousted from the management. In these circumstances, calling upon him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eginning as is evidenced from the telegram sent immediately on receipt of notice under rule 124 of the Rules. The statement of affairs of the company has to be filed in the prescribed Form No. 57. A bare perusal of the form shows that only a person having intimate knowledge about the affairs of the company would be able to furnish the host of information required thereunder. It is true that the accused could have inspected and did inspect the account books of the company but a mere perusal of the accounts would not enable him to supply the particulars demanded thereunder. I am, therefore, of the opinion that even if accused No. 3 continued to be one of the directors of the company, he was not in a position to submit the statement of affairs in the prescribed form as he had no intimate knowledge regarding the affairs of the company since 1974-75. In these circumstances, I am not inclined to think that the prosecution has proved that accused No. 3 committed a default in complying with the requirements of section 454 of the Act without reasonable excuse." In the present case, the official liquidator has not placed any material whatsoever to establish even prima facie that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
