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TMI Blog2003 (5) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... gwan Das Road, C-Scheme, Jaipur and worked at Plot No. K-1921, Road No. 1, Jaitpura Industrial Area, Jaipur, was ordered to be wound up on 20‑3‑1997 in S.B. Company Petition No. 24/96, titled M/s. Design Fabrication & Consultant Engineers v. San India Electrochem Private Limited. 3. The Official Liquidator, as required by section 454(1) of the Companies Act, 1956, sent a registered AD notice in Form 55 under Rule 124, to the non-applicants, informing them of the order passed by this Court and calling upon them to submit within 21 days from the date of the winding up order, a statement of affairs of the aforesaid company ordered to be wound up. They were also directed to obtain the necessary forms and instructions from the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of affairs of the company, despite having been called upon to do so, even though they were in a position to do so, did not do so within the period prescribed, (nor have they done so till date) be summoned and tried according to law. It is also prayed that they be meted out the punishment fit for the offence, which entails imprisonment for up to 2 years and fine of up to Rupees one hundred for each day the default continues. It is further prayed that the Non-Applicants may also be directed to file the statement of affairs under section 454 of the Companies Act, 1956." 6. The non-applicants submitted their reply to this application. Their case is that on 3rd of September, 1996 the RIICO had already taken the possession of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in dispute that those two proceedings have already been withdrawn by the non-applicants. 8. The order of the winding up of the company, thus, attained finality. The requirement of section 454(2) of the Companies Act, 1956 is that the statement of affairs are to 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 (In liquidation). The statement of affairs have to be made and submitted by the above persons from their own record whether or not the Official Liquidator call upon them to do so. This is an independent duty and also an obligation under the statute. The Official Liquidator has given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement that the order of the winding up of the company (in liquidation) was not stayed by the Company Judge in the application filed by the non-applicants for recalling the same or in the appeal by the Division Bench. Thus, the non-applicants have to file the statement of affairs. 14. Sub-section (5) of section 454 of the Companies Act, 1956 provides that if any person, without reasonable excuse, makes default in complying with any of the requirements of this section, he shall be punishable with imprisonment for 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. The words "one hundred" in sub-section(5) of section 454 of the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with notices of the application under section 454(5) of the Act, 1956. 16. Taking into consideration this aspect of the matter from any angle or approach on this ground as projected and presented in the reply to the application it cannot be taken a reasonable excuse for non-filing of the statement of affairs and thus the non-applicants have committed an offence which makes them liable for penalty as provided under sub-section (5) of section 454 of the Companies Act, 1956. 17. The next question falls for consideration is what penalty is to be ordered against the non-applicants. 18. Sub-section (5) of section 454 of the Companies Act, 1956 provides two penalties, first - imprisonment for a term which may extend to two years or, second - f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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