2019 (7) TMI 1191

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....ties of the present Crl.O.(CO.) 2/2012. It is submitted in the present application that the winding up petition was filed in 2010 and the applicant had resigned from the claimant Company in 2009. It is further stated that the applicant intimated the Registrar of Companies about the factum of non-filing of Form 32 showing the cessation of the applicant from the board of the claimant company by the company. It is stated that the Registrar of Companies had filed a complaint against the company for violation of Section 303 of the Companies Act for non-filing of Form 32. Reliance is also placed on the report of the SFIO to state that the SFIO has exonerated the applicant. Hence, the prayer to delete the name of the applicant from the array of th....

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....el.) 11. 6. The Coordinate Bench of this court in the aforenoted case of Dr.J.S. Gambhir vs. Millennium Health Institute and Diagnostics (P) Ltd.(supra) held as follows:- "25. A plain reading of Section 454(2) of the Act indicates that a Statement of Affairs has to be filed by persons who are Directors on the relevant date. Sub-section 8 of Section 454 defines the relevant date to be the date on which a Provisional Liquidator is appointed. And, in case where no such appointment is made, the relevant date is defined to be the date on which the winding up order is passed. In the present case, the relevant date would be 15.01.2010 when the order appointing the Official Liquidator as a Provisional Liquidator was passed by this Court....

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.... 28. In the aforesaid circumstances, the substratal controversy that needs to be addressed is whether filing of Form No. 32 or acceptance of resignation submitted by a Director is necessary for the same to be effective. It is well settled that unless otherwise specified in the Articles of Association of a company, a resignation by a Director would become effective from the date on which it is communicated. A resigning Director is not obliged to file Form No. 32 with the Registrar of Companies. A resignation by a director implies a relinquishment of his office. This is a unilateral Act which unless the Articles of Association otherwise provide, is not contingent on the acceptance by the company. Directors act as agents of the company ....