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TMI Blog2007 (11) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be wound up and he has been appointed as the liquidator of the said company. Accused Nos. 1 to 11 were the directors of the said company as on the relevant date of the winding up order as per the records maintained by the Registrar of Companies, Ahmedabad. As per the provisions of section 454 of the Companies Act, 1956, the ex-directors of the company were required and legally bound to file with the official liquidator the statement of affairs of the company in liquidation within 21 days from the date of winding up order or such time as may be extended by the official liquidator or High Court, not exceeding three months. Due notices under section 454 of the Companies Act, 1956, were issued to accused Nos. 1 to 11 on February 10, 2000 and despite that fact, the accused persons have not filed any statement of affairs with him and hence, they have committed default without any reasonable or lawful excuse. The official liquidator has further stated that the accused persons have also failed to hand over the books of account and records of the company to him. He was, therefore, of the view that the accused persons have wilfully and deliberately neglected to file the statement of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inception of the company till the date of winding up order, the affairs of the company were managed by Mankodi family and all the records including the books of account and the minute book of the board of directors as well as the minute book of the general meeting were in their custody. He was attending to the board meeting as and when sufficient notice was given to him. It is further stated that late Shri Yogesh Mankodi was the chairman of Samasta Nagar Co-operative Bank Ltd., Mumbai and had obtained loan facilities from the said bank. Hence, his relations with late Shri Yogesh Mankodi were strained and since early 1990, he did not attend the board meeting. Even on April 27, 1997, he handed over his resignation to late Shri Yogesh Mankodi, but no action was taken thereon by him. It is further stated in the affidavit that he was not in a position to submit the statement of affairs required under section 454 of the Companies Act, 1956, within the stipulated period, due to the circumstances beyond his control and prayed for condonation for non-filing of the statement of affairs. Accused No. 2, i.e., Ilaben Y. Mankodi has filed her affidavit on January 17, 2006. She has submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said affidavit to relieve him from the obligation of submitting a reply as directed by the court vide its earlier order. He has also reiterated his prayer for discharge in the said affidavit. Accused No. 2 has also filed another affidavit dated August 28, 2006. It is inter alia stated therein that after filing of the statement of affairs, no queries have been received by her till February 15, 2006. The queries which were raised were also answered. Since the ex-directors have fulfilled the formalities of filing the statement of affairs, they are required to be discharged from the criminal proceedings. The queries would be independently solved but the ex-directors are required to be exonerated from the criminal proceedings. Similarly, accused No. 3 has also filed further affidavit dated August 28, 2006 and reiterated more or less the same contentions as were raised by accused No. 2. After filing the complaint, the official liquidator has for the first time, filed his report before the court on September 13, 2006. He has stated in his report that on going through the affidavits filed by accused Nos. 2, 3 and 5, it was found that they have attempted to shift the liability on others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by late Shri N. T. Vaishnav who himself was a chartered accountant. The official liquidator thereafter filed further report on March 5, 2007, wherein it is stated that the following details were not furnished by accused Nos. 2, 3 and 5. I.The complete addresses of trade debtors are not furnished. II.The complete names and addresses of loanees and advances have not been furnished. III.The complete addresses of branches of banks and number and nature of accounts, in which bank balance of Rs. 4,45,183 is lying, is not furnished. IV.The revised statement of affairs is not supported by an affidavit of the accused director and concurrence affidavit of other accused. The queries raised by the official liquidator in his report of March 2007 were duly replied by accused No. 2 vide her letter dated June 22, 2007, a copy of which is placed on record. She has inter alia stated in the said reply that all the bank accounts mentioned in the statement of affairs were collection accounts for the purpose of depositing sale proceeds. They were opened in places where the company had marketing activities except for the account with the Bank of India, Raopura branch, the Dena Bank, Alkapuri branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons till this date is considered to be sufficient compliance and they are not to be burdened with any further agonies by continuing these criminal proceedings against then. This however does not mean that the accused persons are allowed to go completely scot free. Even as per the say of the accused persons, the statement of affairs was filed on January 20, 2001, i.e., after a period of one year from the date of the winding up order. Section 454(3) of the Companies Act, 1956, casts an obligation on the persons mentioned in section 454(2) to submit a statement of affairs within 21 days from the relevant date or even such extended time not exceeding three months from the date as the official liquidator or the court may, for special reasons, appoint. Sub-section (8) of section 454 states that the expression, "the relevant date" means in a case where a provisional liquidator is appointed, the date of his appointment and in a case where no such appointment is made, the date of the winding up order. The official liquidator has proceeded all through out on the footing that the accused persons have committed default in filing statement of affairs within 21 days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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