TMI Blog1972 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit and verify the statement of affairs of the company as required by the above provision. On October 23, 1970, this court ordered notice to the accused allowing them one month's time to file the statement of affairs. The accused did not comply with that order also. Thereupon, this complaint has been filed on the allegation that the accused made default in complying with the requirements of section 454(3) of the Act without reasonable excuse. The accused appeared before this court in response to the summons issued to them; and both of them pleaded not guilty. The first accused filed a statement on February 18, 1972, stating that the office of the company was raided and all its properties and books and records were removed by the State of Kerala on July 3, 1962, that the company became defunct from 1964 onwards, and that the accused are not, therefore, in a position to file any statement of affairs of the company. It is also stated that both the accused ceased to be directors of the company more than one year before the date of winding up of the company, and that the liability under section 454(2) of the Act would not apply to them. The first accused has produced a few docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nair should be deemed to have vacated office in any case as General Manager on November 28, 1964 ". There is force in the contention of the first accused. As this appointment as general manager was only for a period, he ceased to hold that office after the expiry of that period on November 29, 1964. Section 255 of the Act deals with appointment of directors, and it provides that unless the articles provide for retirement of all directors at every annual general meeting, not less than two-thirds of the total number of directors shall be persons whose period of office is liable to determination by retirement of directors by rotation, and that save as otherwise provided, be appointed by the company in general meeting. Therefore, no director, who is not one appointed for a fixed period, would be able to hold office for a period beyond the second annual general meeting from the date of his appointment, unless he is re-elected. There is no case that the accused in this case do not fall in this ordinary class of directors or they had a special period of appointment, which has not ended. Since no general meeting had been admittedly convened after August 19, 1961, the accused could not ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." The relevant date is defined in sub-section (8) as the date of appointment of a provisional liquidator, if one is appointed, and the date of winding up order, where no such appointment is made. In this case, no provisional liquidator was appointed, and so the relevant date is the date of winding up order. A careful reading of sub-section (2) shows that it deals with two classes of persons. The first part of it deals with persons who are at the relevant date directors, manager, secretary or other chief officer of the company. The second part deals with such of the persons mentioned in clauses ( a ) to ( d ) there under as the official liquidator, subject to the directions of the court, may require to submit and verify the statement. Clause ( a ) relates to "persons who are or have been officers of the company." There can be no dispute that the accused in this case would fall both under the first part of sub-section (2) and also under clause ( a ) of its second part. The official liquidator filed Application N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods of the company, and holding that the non-availability of the records of the company was a sufficient ground for not holding the annual general meeting and not filing the annual return. In cross-examination, he stated in this court that he has complained to several authorities about the illegal raid and seizure of the company's records and properties, that he has not got so far any relief from any quarters, that there are no records to show that he has made any complaints, that himself and the company's staff were present in the premises when the Government officers made the raid and carried away the records, and that he does not know even now why they did so. This is too good a story to be believed, though it found acceptance with the Magistrate. The statements of findings contained in the judgment are not admissible evidence in this case. I reject the story as absolutely fantastic. Exhibit D-1, the reply affidavit filed by the Registrar of Companies in the winding up petition, shows that the Industries Department of the Government, from whom the company had taken its office building on rent took out proceedings under the Revenue Recovery Act to evict the company from i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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