Officer Exemption from Production of Books: Past director showing lack of access exempted and removed as party.

Whether a past officer must produce company books under section 538 was decided by assessing whether he had access or control; the HC accepted documentary proof of appointment and resignation and contemporaneous evidence that the appellant lacked custody or knowledge of records, held that exceptional cases where a former director demonstrates no access fall within the statutory exemption, and concluded the company judge erred in ignoring uncontested documentary material. Outcome: appeal allowed, appellant exempted from producing books and deleted as party in liquidation, subject to liberty for the liquidator to act on any later material.

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Issues: Whether, under section 538(1) and section 538(1)(c) of the Companies Act, a past officer (former director) who produces material demonstrating lack of access to or control over the company s books and records is entitled to exemption from producing books and papers and deletion as a party respondent in liquidation proceedings initiated by the official liquidator.

Analysis: The Court examined the admitted factual materials: Form No.32 (appointment), Form No.2/Annexure C (resignation accepted by the Registrar), documentary evidence that the appellant served only about 1 2 years, and a letter asserting lack of knowledge of the company s affairs and lack of access to books. The Court noted that section 538 applies to past or present officers but recognised that exceptional cases may arise where a past officer places material demonstrating he had no access to or control over company books. On the facts, the appellant was one of several directors, produced official records of resignation and acceptance, and the respondent did not controvert the documentary material or assert that the appellant alone had custody or control of the books. The Court held that such material cannot be ignored and that the learned company judge erred in dismissing the application without accepting the evidence showing lack of access to the books.

Conclusion: The appeal is allowed; the appellant is exempted from producing the books of account and records and is to be deleted as a party respondent in the liquidation proceedings, subject to liberty to the official liquidator to issue appropriate notice if further material is later obtained.

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