9911796707
TMI Blog1998 (10) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... at notices under section 454 of the Act were issued to the Ex-Directors of the Company as they did not file the statement of affairs, within the statutory period. The said directors are wilfully and deliberately avoiding to take notice, therefore, appropriate orders may be passed against the said Ex-Directors for having committed default of the provisions of sections 454/456/468 of the Act. Notice of this application was issued to the Ex Directors of the Company (in liq.) who were arrayed as opposite party Nos. 1 to 7. Except the opposite party Nos. 1 and 2 who are reported to have absconded, the other Ex-Directors opposite party Nos. 3 to 7 have put in appearance before this Court and filed their affidavits in reply to the abovenoted compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records of the company. So far as the opposite party No. 6 was concerned, she had already resigned as a director of the company in March, 1991 and the resignation was submitted under Form 32 before the Registrar of the Company. On behalf of opposite party No. 7, Shri Shiv Shankar Singhal it was stated that he met with an accident in the year 1991 on account of which he was seriously ill and confined to bed and had no knowledge about the winding up petition filed before this Court. The opposite party Nos. 1 and 2 after obtaining the winding up orders have embezzled the funds of the company and absconded along with the relevant records pertaining to the company. Consequently, it was contended on behalf of the opposite parties that they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Liquidator has not been able to deny the said allegation. What has been submitted, however, is that the Ex-Directors are equally responsible to submit the statement of affairs and to hand over the assets of the company and they cannot be absolved of their legal responsibility. It is well settled that the initial burden to prove the ingredient of an offence under section 454(5) is on the Official Liquidator. If the Official Liquidator proves that he had issued notice but no statement has been filed within the prescribed time by the Ex-Directors, the onus shifts to the opposite party to give a reasonable explanation. Admittedly, the notice was issued by the Official Liquidator and the statement of affairs were not filed. The question, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, a statement of affairs in the prescribed format had been filed by him subsequently on the basis of whatever record was available with the Chartered Accountant of the company. The only question was whether the delay in filing the said statement belatedly after over two years could be condoned. The said opposite party has, along with his counter affidavit, submitted medical certificates to show that on account of an accident, he had received serious injuries and he was confined to bed for a long period. The said opposite party has, therefore, given an explanation for the delay which in the facts and circumstances of the case could be condoned. Consequently, this Court is of the view that as the opposite party Nos. 3 to 7 have given a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll clock and few accounts books. The signature of Shri Surendra Kumar Sharma, Branch Manager is there on the said supurdginama which also contains the signatures of the other directors including opposite party Nos. 3 to 5 at the bottom. Under the circumstances the explanation given by the opposite party Nos. 3 to 5 cannot be ruled out. Undoubtedly, Surendra Kumar Sharma was the best person who could say about the same but his whereabouts could not be traced out. Under the circumstance I am unable to hold the opposite party Nos. 3 to 7 as responsible for not handing over the items given in supurdgi to the Official Liquidator. It shall, however, be open to the Official Liquidator to lodge a First Information Report by post to Senior Superinte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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