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TMI Blog1999 (12) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... tor under sub-section (5) to section 454 of the Companies Act, 1956 ( the Act ), read with rule 125 of the Companies (Court) Rules, 1959. It had been asserted that the intimation of winding up order was received on 18-1-1995. The copies of the formal winding up order were received on 20-3-1995. The Official Liquidator alongwith an official of his office visited the office of the Registrar of Companies, Delhi and Haryana, for inspection of the records of the company. He also visited the factory premises of the company at Jind, Rohtak Road, Anoopgarh. There were no ex-directors of the company present, and, therefore, the inventory of machinery and books was not made. Even the office of the company maintained at A-301, Ansal Chamber I, Bhikaji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of the company on 13-9-1994. He was not aware if his resignation had been accepted or not. In this process, his defence was also that he did not have the books of account with him. Shatish Chandra Gupta also stated without oath that he did not have in his possession any paper, record or notes belonging to the company. 5. In order to show that without just and sufficient ground, the respondents have failed to do the needful, Shri D.C. Kwatra, Official Liquidator attached to this court, appeared as CW1. He stated that the respondents were directors of the company. They did not file statement of affairs till date. There was no reasonable excuse for not filing the statement of affairs. He was cross-examined and thereupon, he added that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a term which may extend to two years, or with fine which may extend to one hundred rupees for every day during which the default continues, or with both. (5A) The court by which the winding up order is made or the provisional liquidator is appointed, may take cognizance of an offence under sub-section (5) upon receiving a complaint of facts constituting such an offence and trying the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (5 of 1898) for the trial of summons cases by Magistrates." 7. A perusal of the same shows that while the directors are under a duty to file the statement of affairs before the Official Liquidator where the company is directed to be wound up, still, if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the accused persons to prepare a statement of affairs. The law does not impose an impossible liability on the directors. . . ." (p. 387) 8. Similarly, in the case of K.S. Mathura Dass v. State of Punjab [1977] 47 Comp. Cas. 467 (Punj. Har.), a complaint had been filed under sub-section (5) to section 454 of the Act. The reply had been that the records had been lost and the company had no property, cash or bank balance. It was held that this did not amount to an admission and there should be positive evidence to show that without reasonable excuse the statement of affairs had not been furnished. 9. Delhi High Court again in the case of C.R.E. Wood Co. (P.) Ltd. v. Sardar Iqbal Singh [1984] Punj. LR 124, was dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that they are not in possession of any of the assets or books of account of the company and that they have no concern with them. In view of the affidavit and the statements made by respondents 2 to 4 and 6, the petition qua them is dismissed. Respondents 1 and 5 have not appeared in spite of service. They are ordered to be proceeded against ex parte . After hearing learned counsel for the petitioner and having gone through the petition, I am satisfied that respondents 4 and 5 were the directors of the company and they are directed to hand over the assets, property, books of account and records of the company to the Official Liquidator at the earliest but not later than two months from today." 11. It is abundantly clear that onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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