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TMI Blog2013 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard the arguments of Sri Jayaram, learned Advocate appearing for official liquidator and Sri Rajeshwar, learned counsel appearing for respondent Nos.1 and 3 and Sri Rajendra, learned counsel appearing for respondent No.2. Perused the pleadings, records, depositions of the witnesses and exhibits marked thereto. 3. Company in liquidation came to be ordered to be wound up in Co. P. 138/2000 by order dated 25.07.2002. It is alleged in the application that respondent Nos. 1 to 3 were Directors of the company in liquidation and they are jointly and severally responsible for the assets, properties and effects of the company which has been ordered to be wound up and after collecting details from Registrar of Companies, Bangalore, letters to the Ex-Directors came to be issued to submit the statement of affairs and handover books and accounts including statutory records of the erstwhile company and in response to the said letter, respondents filed statement of affairs belatedly. It is further contended that balance sheet of the company as on 25.07.2002 which was filed along with statement of particulars reflected that sundry debtors owed a sum of Rs. 37,22,034/- to the company (in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant's witness to contend that there is no wilful withholding of any information to the official liquidator and at all points of time, they have co-operated with the official liquidator and question of these two respondents committing any breach would not arise. He would also elaborate his submission by contending that discrepancy that has occasioned in the statement of particulars filed by respondents-1 and 3 is with reference to the revised amount which relates to the margin money paid by the erstwhile company while obtaining bank guarantee and this has also been reflected in the statement as per Ex.R-22 which came to be certified by the State Bank of India vide their communication dated 09.10.2007 and as such there is neither misrepresentation nor wilful withholding of any documents from production before official liquidator and as such, there is no act of misfeasance committed by respondent Nos.1 and 3. On these grounds he seeks for dismissal of the application. 7. Sri Rajendra, learned Advocate for respondent No.2 would also support the arguments of Sri Rajeshwar and he would further contend that application against respondent No.2 itself was not maintainable inasmuch as, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidator initiated proceedings against Ex-Directors by filing an application under Section 454 (5) & (5A) of the Companies Act, 1956 with a prayer to take cognizance of the alleged offence committed by erstwhile Directors. Said application came to be registered as C.A.No.939/2002. In the meanwhile, Ex-Directors -respondents also filed application seeking for condonation of delay of 75 days in filing statement of affairs by filing C.A.288/2003. After considering the cause shown, delay was condoned and consequently C.A.No.939/2002 filed by Official liquidator seeking for initiating action against Ex-Directors came to be disposed of by order dated 03.04.2003. There is no dispute with regard to these factual matrix. Subsequent to filing of statement of particulars, on account of non-furnishing of correct particulars, official liquidator has contended that certain amounts due from sundry debtors, loans and advances said to have been made by the erstwhile company to certain persons could not be recovered which was on account of non-furnishing exact particulars, and details and as such, on account of non-recovery of these amounts, he contended that it is to be recovered from the present di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 17.12.2001 finds a place. Subsequent letters written by second respondent to the official-liquidator as per Ex.R-3 to R-8 would also indicate that official liquidator had been intimated of the resignation letter submitted by second respondent to the Board of directors of the company under liquidation. The witness who has been examined on behalf of official liquidator namely, P.W. 1 does not dispute these documents. On the other hand, she pleads her ignorance about these documents. Thus, having not disputed this factual matrix and there being no other material available on record to arrive at a conclusion that second respondent was in fact a director of the erstwhile company as on the date of order of winding up came to be passed, no proceedings can be' initiated and continued against second respondent. In fact, P.W.1 in the cross examination dated 08.07.2010 has also admitted about signature of the official liquidator found in Ex.R-1 and R-2. In view of the fact that O.L was also aware of the resignation having been tendered by respondent No.2 not only on 17.12.2001 but also on 06.09.2002 and 29.10.2002, non-filing of Form No.32 by the company (in liquidation) would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/- (-) Rs. 4,93,492) . This amount of Rs. 4,77,060/- was due from different sundry debtors. As to what steps official liquidator took to recover the said amount, whether notice was issued, what were the steps taken by official liquidator and why said amount could not be recovered, plea in this regard is silent. Neither in the examination-in-chief nor in the cross examination R.W. 1 it has been brought on record as to what reasonable steps official liquidator took to recover the amount and/or otherwise why such steps could not be taken to recover the said amount. In the absence of any such material available on record, it is not possible for this Court to examine the conduct of any of the ex-directors in the affairs of the company. In fact, in the cross examination dated 08.07.2010 of P.W.1 has admitted to the following effect: "We have made the list of sundry debtors. It is true that we asked for details and particulars of sundry debtors from the company. The company has furnished incomplete information. We have issued notices for further information but I cannot say the date." As to what was the information which was sought from the erstwhile directors and information or detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars Ex.P-1. Statement of affairs by the erstwhile company as reflected in Ex.P-1 was as on 24.10.2002 subsequent to the audit conducted. Thereafter it has been found that bank guarantee margin money is reflected in the statement of particulars was Rs. 1,31,230/- as against revised sum of Rs. 6,03,275/-. This difference in amount was on account of retention of margin money by the bankers of the company in liquidation namely, State Bank of India and to evidence the fact that margin money has been retained by the said Bank was to the tune of Rs. 6,03,275/-, confirmation letter issued by the said bank on 09.10.2007 came to be produced and marked as Ex.R-22. This document would fortify the contention raised by respondents-1 & 3 in their statement of objections as well as in their evidence. It is also to be noticed that amount of Rs. 54,587/- said to have been received by the company from the income tax department has been handed over to official liquidator on 08.11.2002 as per Ex.R-19. Even the Certificate of tax deducted at source for the assessment year 2002-03 received from different customers has also been handed over to official liquidator on 28.01.2003 as per communication ..... X X X X Extracts X X X X X X X X Extracts X X X X
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