TaxTMI 
TaxTMI 
2006 (11) TMI 350
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....8 (Paper No. A-3) :- 1.B.K. Modi 2.S.K. Modi 3.K.K. Sen 4.Ravindra Narain 5.Shailendra Swarup 6.C.M. Maniar 7.R.P. Dongre 8.Rajeev Kumar 9.N.D. Bhatia 10.S.L. Duggal 4. It is, inter alia, stated in the said Company Application No. 4 of 1998 (Paper No. A-3) that on receipt of winding-up order dated 21-12-1993 in respect of the aforesaid Company (in liquidation) from this Court, the Official Liquidator issued notices to the Opposite Parties/Ex-Directors of the aforesaid Company (in liquidation) for filing the 'Statement of Affairs' in terms of section 454 of the Companies Act, 1956 read with rule 113 of the Companies (Court) Rules, 1959; and that in terms of the provisions of the said section and the said rule, the Ex-Directors of the afore- said Company (in liquidation) were required to submit the 'Statement of Affairs' duly affirmed within 21 days from the date of winding-up order. 5. It is, inter alia, further stated in the said Company Application No. 4 of 1998 that the notices were issued to the Opposite Party Nos. 1 to 10, the Ex-Directors of the aforesaid Company (in liquidation); and that the notices issued to the Opposite Party Nos. 1 to 7....
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.... Counter-Affidavit, sworn on 18-5-1998 by S.K. Gupta, stated to be the Authorised Signatory of the Opposite Party No. 1. The Court granted time to the Official Liquidator for filing reply to the said application (Paper No. A-14) by 6-7-1998. 12. It further appears from a perusal of the order dated 14-7-1998 passed by the Court that a Rejoinder Affidavit (Paper No. A-15) was filed by the Official Liquidator in reply to the aforesaid Counter-Affidavit (Paper No. A-14). The Court, by the said order dated 14-7-1998, inter alia, further directed for listing of the case for hearing on 6-8-1998. 13. The case was accordingly put up before the Court on 6-8-1998. On 6-8-1998, the Court directed the case to be put up on 7-8-1998. 14. It further appears that on 7-8-1998, the Court passed the following orders :- "Sri Rakesh Kumar Agarwal, Advocate, who was appearing for Sri B.K. Modi, one of the Opposite Parties in this case, is no more. Office is directed to issue notice to the concerned parties to engage another counsel in place of Sri Rakesh Kumar Agarwal, since deceased." 15. Pursuant to the said order dated 7-8-1998, notice was sent to the Opposite Party No. 1, and thereupon....
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....f the said Counter-Affidavit that a perusal of the said Form 32 shows that the Opposite Party No. 1 had resigned from the post of Director by the letter dated 7-2-1992. 23. It is, inter alia, further stated in paragraph No. 5 of the said Counter-Affidavit (Paper No. A-20) that the said Form 32 was duly registered by the Registrar of Companies, Kanpur on 8-9-1993. 24. It is, inter alia, further stated in paragraph No. 5 of the said Counter-Affidavit (Paper No. A-20) that as the Opposite Party No. 1 had resigned on 7-2-1992 much before winding up order passed by this Court, the Opposite Party No. 1 could not be compelled to produce the 'Statement of Affairs', as required under section 454 of the Companies Act, 1956; and that the Opposite Party No. 1 was not working as Director, and he did not have any asset of the aforesaid Company in question with him. 25. It is, inter alia, stated in paragraph No. 7 of the said Counter-Affidavit (Paper No. A-20) that as soon as the Opposite Party No. 1 received notice dated 28-1-1994 from the office of the Official Liquidator, U.P., Allahabad attached to this Court requiring the Opposite Party No. 1 to submit the 'Statement of Affairs' of ....
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.... days as provided under section 454(5) of the Companies Act, 1956. Sri B.K. Modi has filed an affidavit alleging that he resigned from the Directorship on 7-2-1992 before the winding-up order was passed by the Court on 21 -12-1993. Sri L.D. Kaushik has filed an affidavit as pairokar of Sri S.K. Modi, another Director, stating that Sri S.K. Modi had resigned before the winding-up order was passed by this Court. I am not disposing of the application finally at this stage and it is not necessary to decide at present the question as to whether they in fact resigned and if so, its effect. The statement of affairs has admittedly not been submitted by any of the Directors before the Official Liquidator. Section 454(2) of the Act provides that the statement of affairs shall be submitted and verified by one or more of the persons who are at the relevant date Directors and by the person who is at that date the Manager, Secretary or other Chief Officer of the Company, or by such of the persons mentioned in sub-section. Sri L.D. Kaushik has filed a Counter-Affidavit as pairokar of Sri S.K. Modi. He has annexed certain documents with the Counter-Affidavit, Form-32 filed by him as Annex....
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....sued to the said Sapan Bandopadhyaya. 37. In response to the said notice, the said Sapan Bandopadhyaya filed an affidavit (paper No, A-27), sworn on 2-12-1999 along with an application. 38. In reply to the said affidavit (Paper No. A-27) filed on behalf of the said Sapan Bandopadhyaya, the Official Liquidator, filed a Counter-Affidavit (Paper No. A-28), sworn on 10-12-1999. 39. It further appears that the said Sapan Bandopadhyaya filed another affidavit (Paper No. A-29), sworn on 26-2-2000 along with an application. 40. On 18-8-2000, the Court passed the following order :- "Passed over for the day on the illness slip of Sri Piyush Agarwal, counsel for the respondent. List on 12-9-2000 peremptorily. Sri J.N. Tiwari appearing for one of the respondents states that he should be allowed inspection of record so that statement of affairs may be filed. The possession over the Company is of the Official Liquidator. With the consent of the Official Liquidator 8-9-2000 is fixed as date of inspection of record at the premises of the Company (In liquidation by Sapan Bandopadhyaya or, his counsel. The case shall come up on 12-9-2000 with Company Application No. 10 of 1998." ....
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....s alternate Director ceased to be a Director with effect from 26-5-1992, much before the Company was wound-up by order dated 21-12-1993. The fact has been admitted in the Rejoinder-Affidavit of the Official Liquidator. In the aforesaid facts and circumstances, Sri Shailendra Swaroop, respondent No. 5 is exempted from complying with the provisions of section 454 of the Companies Act, 1956. So far the other Directors are concerned, the matter shall be considered on the next date fixed. List again in the next cause list." 44. It is evident from the abovequoted order dated 1-11-2001 that the matter regarding other ex-directors of the aforesaid Company (in liquidation) was directed to be considered on a future date. 45. Thereafter, on 20-11-2001, the Court passed the following order :- "Sri Bharat Ji Agarwal, Senior Advocate assisted by Sri Piyush Agarwal have prayed for application No. A-14 for exempting Sri B.K. Modi from the proceedings under section 454(5) of Companies Act, 1956, on the ground that Sri B.K. Modi had tendered resignation, on 26-5-1992 in proof of which, a photostat copy of certified copy of Form-32 dated 26-5-1992 has been submitted by Sri L.D. Kaushik, M....
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....fice so that the same may be inspected and give notice to Sri J.N. Tiwari, who shall inform his clients to come to the office of the Official Liquidator and Inspect the records. Sri Sapan Kumar Bandhopadhyaya has filed an affidavit dated 26-2-2000 stating that Official Liquidator and Punjab National Bank be directed to afford an opportunity to the applicant to inspect all the records lying in the factory. Sri L.D. Kaushik was also praying repeatedly since 1993 to grant time to submit the statement of affairs. The fact remains that pending applications to exempt the Directors, the officials who appeared before the Court and were required to file statement of affairs are delaying the filing of returns since 1993. It is a matter of serious concern. In the absence of statement of affairs, the company cannot be effectively dissolved and that is why liability has been fastened with punishment provided under section 454(5) of the Act and these are the reasons why the hearing of the application of Sri B.K. Modi, A-14 was deferred. In the aforesaid circumstances, taking serious note of the circumstances, the Court is constrained to give only four weeks further time to the Directors an....
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....9-2-2002, the Official Liquidator submitted his report being Report No. 137 of 2003. 50. The Court, thereafter, passed the following order on 6-5-2003 :- "Pursuant to the order dated 22-1-2002, Official Liquidator has submitted his report today being Report No. 137 of 2003. In the said report, it has, inter alia, been stated that the deficiencies noted in the statement of affairs submitted by Sri Sapan Kumar Bandhopadhyaya have been brought to the notice of Sri Sapan Kumar Bandhopadhyaya by Registered A.D. letter, but no reply has so far been received to the said letter. By the order dated 22-1-2002, Official Liquidator was further required to submit his report with regard to as to whether Director and the officers responsible have given reason for delay in filing the statement of affairs in respect of the company, which was wound up on 21-12-1993. The report, submitted today, does not deal with the said aspect. Official Liquidator is directed to submit a further report regarding the said aspect mentioned in the said order dated 22-1-2002. Sri Rakesh Tiwari, who was representing Sri L.D. Kaushik and Sri Sapan Kumar Bandhopadhyaya, has since been elevated to the Bench....
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....e said B.K. Modi (Opposite Party No. 1) to file the 'Statement of Affairs' in respect of the aforesaid Company in liquidation. Specific directions, if any, were issued to the aforementioned L.D. Kaushik and Sapan Kumar Bandhopadhyaya. 3.Even if the said B.K. Modi (Opposite Party No. 1) was treated to be an 'Officer' of the aforesaid Company in question in view of the provisions of sub-section (30) of section 2 of the Companies Act, 1956, and as such, covered under clause (a) of sub-section (2) of section 454 of the Companies Act, 1956, he may be exonerated from the liability of filing the 'Statement of Affairs' in view of the facts and circumstances of the present case. It is submitted that the said S.K. Modi was the Managing Director of the aforesaid Company in questions, and he was involved in the day-to-day affairs of the aforesaid Company. The said B.K. Modi (Opposite Party No. 1) was not involved in the day-to-day affairs of the aforesaid Company in question. Reference is made to the Extract of the Memorandum of Association of the aforesaid Company in question containing the names of the persons, who subscribed to the said Memorandum of Association, filed as Annexure-....
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....se, discretion be exercised in favour of the said B.K. Modi (Opposite Party No. 1), and he may be exonerated from the liability for filing the 'Statement of Affairs' under section 454 of the Companies Act, 1956. Reliance in this regard is placed on the following decisions :- (1)Official Liquidator, High Court of Andhra Pradesh v. Koganti Krishna Kumar 1994 Cri. LJ. 797 (AP). (2)Mother Care (India) Ltd. v. Prof. Ramaswamy P. Aiyar [2004] 51 SCL 243 (Kar.). 56. In reply, Sri S.K. Saxena, Official Liquidator, has made the following submissions :- (1)On an analysis of section 454 read with sub-section (30) of section 2 of the Companies Act, 1956, it is apparent that even if the said B.K. Modi (Opposite Party No. 1) is assumed to have resigned on 7-2-1992, still he remained liable to submit the Statement of Affairs as an 'officer' of the aforesaid Company in question. (2)The Statement of Affairs in respect of the aforesaid Company (in liquidation) has already been filed under the signature of Sapan Kumar Bandhopadhyaya. (3)The question of liability of the said B.K. Modi (Opposite Party No. 1) may be considered by the Court at this stage, and the Court may examine as....
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.... before the relevant date; (c )who are in the employment of the company, or have been in the employment of the company within the said year and are, in the opinion of the Official Liquidator, capable of giving the information required; (d )who are or have been within the said year officers of, or in the employment of, a company, which is, or within the said year was, an officer of the company to which the statement relates. (3) The statement shall be submitted within twenty-one days from the relevant date, or within such extended time not exceeding three months from that date as the Official Liquidator or the Court may, for special reasons, appoint. (4) Any person making, or concurring in making, the statement and affidavit required by this section shall be allowed, and shall be paid by the Official Liquidator or provisional Liquidator, as the case may be, out of the assets of the company, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the Official Liquidator may consider reasonable, subject to an appeal to the Court. (5) If any person, without reasonable excuse, makes default in complying with any of the re....
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.... the Companies Act, 1956 inter alia, provides that where the Court has made a winding-up order or appointed the Official Liquidator as provisional Liquidator, there shall be made out and submitted to the Official Liquidator a statement as to the affairs of the Company in the prescribed form. The statement will be verified by an affidavit, and will contain the particulars, mentioned in clauses (a) to (e) of the said sub-section (1) of section 454 of the Companies Act, 1956. 61. It may be mentioned that in view of Rule 127 of the Companies (Court) Rules, 1959, the statement as to the affairs of the Company to be submitted under section 454 of the Companies Act, 1956 shall be in Form No. 57 and shall be made out in duplicate, one copy of which shall be verified by affidavit. The said Rule 127, inter alia, further provides that an affidavit of concurrence in the statement of affairs shall be in Form No. 58. 62. It is further noteworthy that sub-section (1) of section 454 of the Companies Act, 1956 is subject to the power of the Court to order otherwise 'in its discretion'. 63. Hence, sub-section (1) of section 454 imposes a duty to make out, verify and submit to the Official L....
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...., or within the said year was, an officer of the Company to which the statement relates. 69. In case, the Official Liquidator, subject to the direction of the Court, requires the persons, mentioned above, to submit and verify the Statement of Affairs, the said persons will be under duty to submit and verify the Statement of Affairs of the Company. 70. It will be noticed that Part (A) mentioned above, deals with such persons, who are the directors 'at the relevant date', and such person, who is the manager or secretary or other chief officer of the Company 'at the relevant date'. 71. Clause (b) of the said sub-section (2), mentioned in Part (B) above, requires participation in the formation of the Company at any time within one year before the relevant date. 72. Similarly, Clause (c) and Clause (d) of the said sub-section (2) mentioned in Part (B) above, require employment either in praesenti or within one year before the relevant date. 73. However, Clause (a) of the said sub-section (2), mentioned in Part (B) above, mentions the persons, 'who are or have been officers of the Company'. Therefore, Clause (a) does not lay down any time-limit as to when a person has been....
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.... of Companies [1980] 50 Comp. Cas. 536 (Pat.). 82. In Devinder Kishore Mehra's case (supra), a Division Bench of the Delhi High Court opined as follows:- "The first point which arises for determination is whether an ex-director like the appellant falls within the ambit of sub-section (2) of section 454 of the Companies Act. Our brother, D. K. Kapur, J., revising an earlier opinion given by him, has held that an order under section 454 of the Companies Act can be passed in respect of persons who were directors of the company even more than one year prior to the passing of the winding-up order. What led our learned brother to revise his opinion was a peculiar circumstances disclosed in this case. It seems that all the respondents in C.A. No. 664 of 1975 claimed that they had resigned as directors between the years 1965 and 1969, long before the winding-up order was passed. Thus, in the case of M/s. Sipso Agencies Private Ltd., it appeared that there was nobody who could be called upon to file a statement of affairs as none was a director on the relevant date. Analyzing section 454 of the Companies Act, the learned Judge, therefore, came to the conclusion that it could not be en....
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....mission that it would lead to monstrosity has also to be rejected Inasmuch as in the first sub-section itself it is provided that the Court in asking for a statement of affairs from a person shall do so in its discretion. It, therefore, follows that if, in certain circumstances, the Court finds that an officer of the company who had been in the employment of the company will not be able to submit the statement as required, it will not call upon such a person to do so. Similarly, the submission that in construing the plain words of a section, punctuations could not be relied upon is of no assistance in the present case. Firstly, as I have pointed out, it is not a question of punctuation when Clauses (a), (b ), (c) and (d) of section 454 are to be construed. As pointed out earlier, different classes of persons have been grouped under different clauses and, in the absence of any other good reason, the provisions with regard to one class cannot be imported into the provision with regard to the other class. The words used in Clause (a) are very distinct and clear and, in the absence of any restriction with regard to the period as provided in Clauses (b), (c) and (d ), it is not possi....
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.... (ii)within such extended time not exceeding three months from the relevant date, as the Official Liquidator or the Court may, for special reasons, appoint. 85. Sub-section (4) of section 454 of the Companies Act, 1956 deals with the payment to be made by the Official Liquidator or provisional Liquidator, as the case may be, to the aforementioned persons in respect of costs and expenses incurred in and about the preparation and making of the Statement of Affairs and affidavit by such persons. 86. It is provided that any person making, or concurring in making, the statement and affidavit required by section 454 shall be allowed, and shall be paid by the Official Liquidator or provisional Liquidator, as the case may be, such costs and expenses incurred in and about the preparation and making of the statement of affidavit as the Official Liquidator may consider reasonable. Such payment will be made out of the assets of the Company. 87. It is further provided that the determination by the Official Liquidator is subject to an appeal to the Court. 88. Sub-section (5) of section 454 of the Companies Act, 1956 deals with the consequences of default committed by the aforemention....
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....efrom. 97. Such inspection of the statement and obtaining copy thereof or extract therefrom may be undertaken at all reasonable times on payment of the prescribed fee. 98. Sub-section (7) of section 454 of the Companies Act. 1956 provides that if a person untruthfully states himself to be a creditor or contributory under the aforesaid sub-section (6) of section 454 of the Companies Act, 1956, then such a person will be guilty of an offence under section 182 of the Indian Penal Code. Such a person will be punishable accordingly on an application of the Official Liquidator. 99. Sub-section (8) of section 454 of the Companies Act, 1956, as noted above, defines the expression 'the relevant date', as used in section 454 of the Companies Act, 1956. Accordingly, '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. 100. Let us now consider the submission made by Sri Bharat Ji Agarwal, learned Senior Counsel appearing for the Opposite Party No. 1, and those made by Sri S.K. Saxena, Official Liquidator, keeping in view the legal position, as....
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....bmitted his resignation letter. 110. Even otherwise, as per the own showing of the said B.K. Modi (Opposite Party No. 1), he was the Director of the aforesaid Company in question till he submitted his resignation letter dated 7-2-1992. As such, in view of the provisions of sub-section (30) of section 2 of the Companies Act, 1956, the said B.K. Modi (Opposite Party No. 1) has been an 'Officer' of the aforesaid Company in question. Therefore, even if, the version of the said B.K. Modi (Opposite Party No. 1) regarding his ceasing to be a Director of the aforesaid Company in question on submission of his resignation letter on 7-2-1992, is assumed to be correct, still he could be required by the Official Liquidator to submit and verify the Statement of Affairs in view of the provisions of Clause (a) of sub-section (2) of section 454 of the Companies Act, 1956. 111. It is evident from the facts narrated above, that the Official Liquidator issued notices, inter alia, to the Opposite Party No. 1 (B.K, Modi) for filing the Statement of Affairs in terms of section 454 of the Companies Act, 1956 read with Rule 113 of the Companies (Court) Rules, 1959. Therefore, the Official Liquidator ....
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....fore the Registrar of Companies, Kanpur. 120. In my view, having regard to the facts and circumstances mentioned above, it cannot be said that the failure on the part of the said B.K. Modi (Opposite Party No. 1) to submit and verify the Statement of Affairs, as per the requirements of section 454 of the Companies Act, 1956 was 'without reasonable excuse.' 121. Hence, in view of the facts and circumstances, the said B.K. Modi (Opposite Party No. 1) is liable to be discharged from his liability for filing and verifying the Statement of Affairs, as per the requirements of section 454 of the Companies Act, 1956. 122. As held above, it is true that the aforesaid fact regarding resignation of the said B.K. Modi (Opposite Party No. 1) from the Board of Directors would not absolve him from his liability to file the Statement of Affairs in respect of the aforesaid Company (in liquidation). However, the said fact may be considered for deciding the question as to whether the failure on the part of the said B.K. Modi (Opposite Party No. 1) in filing the Statement of Affairs was 'without reasonable excuse', or not. 122A. Before parting with the case, it is relevant to refer to the d....
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.... is to submit the same, has to be mentioned. The said order may also require the person to attend on the Official Liquidator at his office at such time as the Official Liquidator may appoint and give him all the information that he required as to the affairs of the Company. When a notice to submit a statement is issued to a person by the Official Liquidator under Rule 124 or when an order is issued in Form No. 56 to a person under Rule 125, such a person is bound to comply with the same and failure to do so would attract him to sub-section (5) of section 454. 8. The question that then arises is whether the respondent can be directed to submit and verify a statement as to the affairs of the Company either by the Official Liquidator or by the Court on an application by the Official Liquidator. The respondent contends that he cannot be so directed for three reasons : (i) because he was not a director of the Company within one year before the relevant date, (ii) because he ceased to be a Director of the Company more than 8 years before the relevant date; and (iii) because he neither has intimate knowledge of the affairs of the Company nor has in his possession any assets, books of a....
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....ement of affairs must have intimate knowledge about the host of Information sought under this form which runs into several pages'." [Emphasis supplied] 124. The learned Judge has also held as follows :- "The expression 'reasonable excuse' means an excuse which a reasonable person considers just and acceptable in the circumstances of the case, that is which appeals to the reason of a reasonable man. In other words, the excuse must be such as may appear to be probable in the facts and circumstances of the case to a prudent, and not to a gullible person. The evidence on record clearly shows that he did not attend any of the board meetings after 28-3-1974. This was his stand from the very beginning as is evidenced from the telegram sent immediately on receipt of notice under rule 124 of the rules. The Statement of Affairs of the company has to be filed in prescribed Form No. 57. A bare perusal of the form shows that only a person having intimate knowledge about the affairs of the company would be able to furnish the host of information required thereunder. It is true that the accused could have inspected and did inspect the account books of the company but a mere perusal of the a....
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....supplied] 125. The above decision of the Andhra Pradesh High Court, thus, supports the conclusion, mentioned above. 126. In Mother Care (India) Ltd.'s case (supra), a learned Single Judge of the Karnataka High Court, has held as follows (paragraph Nos. 5, 6, 13 and 14 of the said SCL) :- "5. Opposing the said application, the Official Liquidator has filed his statement of objections. It is stated in the said objections that the applicant was appointed as a director on 8-8-1990 and the records maintained with the Registrar of Companies show that he continues to be the director; company has not filed Form No. 32 under section 303 of the Companies Act as required under law. Therefore, it cannot be said that the applicant ceased to be the director of the company. The affidavit of another director of the company cannot be relied upon to relinquish any liability of the other director. Therefore, he has sought for rejection of the said applications. 6. The respondent-company was ordered to be wound up by this Court on 15-11-1999. The director of the company who is incharge of the affairs of the company under liquidation has sworn to an affidavit stating that the applicant has ....
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....ate of the winding up order would be called upon to furnish such particulars. But, if a person has ceased to be director of the company either on the date of the winding up order or one year before the date of the winding up order then no action could be taken against him under section 454(5) for non-compliance with section 454(1) of the Act as there is no statutory obligation cast on such director to comply with the said requirement. If the date of communication of the intention to resign is taken into consideration and if that date happens to be anterior to the winding up order, such director who has resigned is under no obligation to comply with section 454 of the Act, as such no action could be taken under section 454(5) and (5A) of the Act. 14. In that view of the matter, in the instant case, the applicant resigned from the Board on 5-7-1995 which resignation was accepted on 8-9-1995. The winding up order was passed on 15-11-1999. Therefore, on the date of winding up order he was not a Director of the company, as such he was under no obligation to comply with the statutory requirement as contemplated under section 454 of the Act. Therefore, the action taken by the Official ....
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....6. 131. Thus, the learned Judge of the Karnataka High Court is of the view that if a person has ceased to be Director of the company either on the date of the winding-up order, or within or beyond one year prior to the date of the winding-up order, then such a person is under no obligation to comply with the requirement of section 454(1) of the Companies Act, 1956, and no action can be taken against such a person under section 454(5) of the Companies Act, 1956 for non-compliance of section 454(1) of the said Act. 132. With deep respect for the learned Judge of the Karnataka High Court, I regret my liability to agree with his conclusion. 133. In view of the discussion in the earlier part of my judgment, it is evident that if a person has been a Director of the Company at any point of time, and he has ceased to be so on the relevant date (i.e., the date of the winding-up order), or within or beyond one year prior to the relevant date, still such a person can be held responsible for submitting and verifying the Statement of Affairs in view of the provisions of section 454(2)(a) read with section 2(30) of the Companies Act, 1956. 134. Further, in case of failure on the part....