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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 ..... ne. The court, therefore, holds that interest of justice would better be served if accused Nos. 2, 3 and 5 are punished with a fine of ₹ 5,000 each for late filing of the statement of affairs. Accordingly, accused Nos. 2, 3 and 5 are punished with a fine of ₹ 5000 each. The amount of fine shall be deposited with the official liquidator within four weeks from today. - CRIMINAL CASE NO. 9 OF 2000 IN COMPANY PETITION NO. 18 OF 1999 - - - Dated:- 30-11-2007 - K.A. PUJ, J. Ms. Amee Yagnik, Pavan S. Godiawala, Nanavati and Nanavati for the Appearing Parties. JUDGMENT [ORAL JUDGMENT] K.A. Puj, J. The official liquidator has filed this criminal complaint under section 454(5) of the Companies Act, 1956 praying for taking cognizance of default committed by the accused persons under section 454(5) of the Companies Act, 1956, and issuance of process against the accused per sons for trying and punishing them in accordance with the provisions of law. The official liquidator has also sought for the direction to the accused persons to submit forthwith the statement of affairs before him as on the date of winding up order, i.e ., January 20, 2000. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7 had resigned much before the date of the winding up order. Thereafter, accused No. 6, namely, Hrishikesh S. Jana was also discharged vide order dated June 19, 2006. He has expired and his death certificate issued by Ahmedabad Municipal Corporation on March 3, 2006, was filed before the court. It is also submitted before the court that accused No. 10, namely, Shri Chandulal P. Shah has also expired. However, his death certificate is not brought on record. So far as accused Nos. 8, 9 and 11 are concerned, they were nominee directors. The real contesting parties are, therefore, accused Nos. 2, 3 and 5. An affidavit is filed by accused No. 5 on January 10, 2006. It is stated therein that he was not directly linked with the day-to-day management of the company. Prior to June 1997, the affairs of the company were managed by late Shri Yogesh R. Mankodi who was Founder-Chairman and man aging director of the company. He expired on June 13, 1997 and thereafter, the affairs of the company were managed by Ms. Dwipa Mankodi, daughter of late Shri Yogesh R. Mankodi who was named as joint managing director earlier. It is further stated that Mrs. Ila Mankodi wife of late Shri Yogesh Mankodi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has inter alia stated in the affidavit that she has already resigned from the post of director on December 15, 1998, i.e ., before the relevant date. She was not aware as to whether Form No. 32 had been filed by the erstwhile management of the company in liquidation or not but the official liquidator was duly informed by her that she has already resigned from the post of director. She has not attended to a single board meeting after her resignation and, therefore, even by virtue of provision of section 283(1)( g ) of the Companies Act, 1956, she was deemed to have vacated her office of directorship. She has further stated that the statement of affairs was already filed and hence, the criminal proceedings against her are required to be dropped. Accused No. 5 has filed his further affidavit on June 28, 2006, clarifying the position that two of the directors at the relevant date have already filed statement of affairs as required under sub-section (1) of section 454 of the Companies Act, 1956 and hence, other directors have been deemed to have been relieved from the obligation to file the statement of affairs. If any queries in respect of the statement of affairs are raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f records or informations or they require help or assistance. It is further stated by him in the report that the statement of affairs is a most important, basic and fundamental document for the official liquidator to proceed for liquidation of the company. It is, therefore, the bounden duty of the directors of the company to submit to the official liquidator all the information, facts, data and details in a systematic manner and format as prescribed in Form No. 57 under rule 127 of the Companies (Court) Rules, 1959, so as to enable him to commence liquidation proceedings of the company in accordance with law. In the absence of statement of affairs, it cannot be expected from the official liquidator to hunt for information, data and details of the affairs of the company to proceed with the liquidation. It is, therefore, stated that the ex-directors of the company cannot be absolved from their statutory liability of filing a factual, complete and proper statement of affairs within the statutory time limit. In response to the above report of the official liquidator, a further affidavit is filed by accused No. 5. While denying the facts and the averments made in the report of the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thwhile to continue these proceedings any further assubstantial compliance of the provisions have been made by the accused Accused No. 1 who was the main promoter and chairman of the company expired on June 13, 1997 and all efforts to revive the company failed. There is no dispute about the fact that after winding up order passed by this court on January 20, 2000 statement of affairs was filed on January 20, 2001. This same was prepared by late Shri N.T. Vaishnav accused No. 4 who was himself a chartered accountant. The queries on the statement of affairs filed on January 20, 2001, were received from the office of the official liquidator in February, 2006. By this time, at least three accused persons have expired. The remaining accused persons, more particularly, accused Nos. 2 and 3 with the help from professionals have tried their best to cover maximum information with the records available with them and filed revised statement of affaires. One should not lose sight of the fact that after 12 years of closure of the company and death of the main promoter as well, as professionals associated with the company wherein all the staff including senior officials having left not only the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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