9911796707
TMI Blog2016 (7) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the company in liquidation. The Official Liquidator moved an application No.15/2006 for permission of this court to prosecute the respondents under Section 454(5) of the Act of 1956, which permission was granted by this court on 26-7-2006. Section 454(1) of the Act of 1956 casts an obligation inter alia on the directors of the company in liquidation to file a statement of affairs of the company in liquidation in prescribed form, verified by an affidavit and containing the prescribed particulars before the Official Liquidator. Under section 454(3) of the Act of 1956 the statement of affairs is to be filed within twenty-one days from the relevant date (inter alia under Section 454(8) of the Act of 1956 the date of winding up) or within such extended time not exceeding three months from that date as the Official Liquidator or the court may for special reasons grant. Sub section 5 of the section 454 of the Act of 1956 provides that if any person without reasonable excuse is non compliant with the requirement of timely filing of the statement of affairs of the company in liquidation he shall be punishable with imprisonment for a term of two years or with fine which may exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to submit the statutorily mandated statement of affairs of the company in liquidation, but to no avail. Copies of the notice dated 28-11-2003, ex-directors' letter received on 28-12-2005, letter dated 7-2-2007 sent by Official Liquidator to RIICO, RIICO's letter dated 18-2-2006, 17-4-2006 and letter dated 19-4-2006 sent by Official Liquidator to respondents are enclosed with the application as annexure-A,B,C,D,E,& F. On these facts, it has been submitted by counsel for the Official Liquidator that the respondents are clearly in breach of their statutory obligation to file the statement of affairs within twenty one days of passing of the winding up order dated 17-10-2003. An incomplete statement of affairs was filed only in January, 2015 followed by a revised yet still incomplete statement of affairs on 5-2-2016. This belated filing, defective as it is, does not constitute compliance. Counsel for the Official Liquidator has submitted that thus the respondents are evidently in breach of their obligation under section 454(3) of the Act of 1956 for over the last over 12 years i.e. 4410 days. And hence they be punished under section 454(5) of the Act of 1956. Reply to application h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hartered Accountant of the company in liquidation. There is no evidence of probative worth on record in support of the contention of the respondents being a victim of the conspiracy between the petitioner in winding up petition and the Chartered Accountant. Further in any event, it is also the case of the respondents that records and account books of the company in liquidation even though available were taken into possession by RIICO on 25-11-2003 when the fixed assets of the company in liquidation i.e. its factory at SP-9B Kukhera Industrial Area District Alwar was taken over by RIICO in exercise of powers under Section 29 of the Act of 1951. The falsity of this contention is evident from the fact that in the correspondence with RIICO by the Official Liquidator it was established that no record or books of account of the company in liquidation were found at SP-9B Kukhera Industrial Area District Alwar when it was taken in possession. The taking over of possession of the fixed assets of the company in liquidation at SP-9B Kukhera Industrial Area District Alwar was inventorised in the presence of Notary Public. The record/ accounts of the company in liquidation is not a part thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector/ manager/ secretary/ a responsible officer of the company is intended to facilitate the winding up process of the company in liquidation-for identifying its assets and liquidating them and recovery of amounts due from the debtors of the company in liquidation to facilitate payment to creditors of the company in liquidation, primarily the workers, the secured/ unsecured creditors, and finally the dissolution of the company in liquidation. Non filing of statement of affairs also obstructs an enquiry to determine as to whether the company had been run in accordance with the provisions of the Act of 1956 and whether any malfeasance or misfeasance by the directors of the company during its existence is made out. Filing of statement of affairs, is imperative for orderly dissolution of company in winding up. Delays/ non compliance are detrimental to public interest. Aside of the aforesaid, in the instant case the application under Section 454 of the Act of 1956 was filed in the year 2010. The respondents could be served only when the jurisdictional Superintendent of Police was directed to ensure the service on them by pasting notice of the application at their residence in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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