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TMI Blog2010 (8) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... affairs under section 454(2) of Co. Act. 2. Notices were issued of present application. Pendente proceedings, respondent-1 (Ravi Kumar Jain), Managing Director of the Company expired and as regards respondents-3 & 4 despite notices issued from time to time and when bailable warrants could not have been executed, finally application was filed seeking permission to delete name of respondents-3 & 4 from array of party respondents which was allowed vide order dated 29-7-2010. After respondent-1 having expired and respondents-3 & 4 having been deleted from array of respondents, respondent-2 has remained sole contesting party. Respondent-2 in his counter filed objection to the instant application that he ceased to be Director of Company in liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on except respondent-2, against whom the proceedings are allegedly initiated by Official Liquidator. However, after notices being served upon respondent-1 who was Managing Director, he sent his reply on 21-4-2003 while giving complete details that possession of the unit was taken over along with records of the Co. in liquidation by RFC in the year 1987, itself inasmuch as it was sold jointly by RIICO & RFC in the year 1989 and therefore, there is no record available which, the Ex-Directors could have furnished about statement of affairs of the Company in liquidation to the Official Liquidator after notice under section 454(1) of Co. Act being served. It is relevant to mention that notice under section 454(1) was never served upon respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich itself, will not absolve him from submitting statement of affairs of the Company which is a statutory requirement of Ex-Director to furnish statement of affairs under section 454(1). Counsel further submits that if Ex-Directors have failed to furnish statement of affairs, the OL can seek direction from Company Court to call upon them to furnish statement under section 454(2) apart from initiating criminal proceedings under section 454(5) of Co. Act. In support, Counsel placed reliance upon judgments of Karnataka High Court in Official Liquidator of Keonics Pentya v. Bharat B. Narang [2010] 154 Comp. Cas. 416 and of Kerala High Court in K.R. Subramanianv. Official Liquidator [2009] 147 Comp. Cas. 2131. 8. Counsel for OL further submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the said year, and are, in the opinion of the OL, capable of giving the information required, to which the statement relates. Thus, sub-section (2) of section 454 is an enabling provision giving the OL a right to seek information by way of filing a statement of affairs from even Ex-Directors or Officers of the Company as referred to under section 2(30) of Co. Act which defines Officer of the Company to include even a Director. 10. This Court finds substance in the submission made by Counsel for OL that even if one has ceased to be Director of Co. in liquidation on the relevant date, it will not absolve him from filing of statement of affairs under section 454(2) of Co. Act; more so when application has been made in the Court as in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he is a right person to whom necessary direction can be issued to file statement of affairs - in absence whereof, the direction against respondent-2 under section 454(2) cannot be held to be legally sustainable. 14. However, it is made clear that even if other respondents whose names stand deleted in present proceedings (supra), that will not preclude from proceedings to be initiated under section 454(5) of Co. Act and if at a later stage, the OL is able to find and point out their whereabouts, present order will not absolve from their obligation to comply with statutory requirement under section 454(2) of Co. Act and from initiating proceedings under section 454(5) of Co. Act. 15. However, if the Director has resigned and proved t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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