9911796707
TMI Blog2012 (6) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... n 454 of the Companies Act and to try them for the said offence in accordance with law. 2. Respondent No. 3 has already been discharged by an earlier order of this Court. Respondent No. 4 on filing his objection statement has contended that he had resigned as a Director of the company in liquidation as far back as in the year April 2001 and as such, as on the date of winding up i.e., 7-11-2005, he was not a Director of the company. Respondents Nos. 1, 2 and 5 have pleaded not guilty of the offences and have also indicated reasons to justify reasonable cause for not being able to comply with the requirement within the time prescribed. It is also indicated that the statement of affairs has been subsequently filed when notice was issued from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be wound up by the order dated 07.11.2005 is not in dispute. The fact that the statement of affairs is required to be filed by the erstwhile Directors of the company within a period of 21 days or the extended period of three months as a the requirement of law is evident. In the instant case, the papers reveals that the statement of affairs was filed on 15.11.2007 by the first respondent and the Official Liquidator on examination of the same has also pointed out the defects for the purpose of rectification. 6. In the background of the admitted sequence of the dates which are available on record and keeping in view the provision contained in section 454(5) of the Act, the evidence available on record requires to be considered. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced a copy of the extract of Form No. 32 to indicate that his resignation has been incorporated in the Office of the Registrar of Companies. However, a perusal of the evidence recorded on behalf of respondent No. 4 who was examined as RW3 would indicate that as far back as in April 2001, he had tendered his resignation to the Board of Directors. Considering the nature of the instant proceedings where the respondent is required to indicate reasonable cause for not having filed the statement of affairs or to show that he was not incharge of the day to day affairs, it would be necessary to examine as to whether the other materials available on record are sufficient to come to the conclusion that in fact respondent No. 4 had resigned as a Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness in his evidence has referred to the incident on 16.11.2005, wherein the Vijaya Bank, Trinity Circle, Bangalore Branch, has seized and sealed the office premises and house belonging to him and the company. In this regard, the said witness has lodged police complaint on the same day i.e., on 16.11.2005. The said document is marked as Ex.D1. Subsequent thereto, the Vijaya Bank which had taken possession of the premises and sealed the same and has brought the property to sale on 12.12.2005 and the publication made in the newspaper has been produced and the same is available on record. The said witness has further stated that subsequently he has addressed letters to the Manager, Vijaya Bank, indicating therein that the company has been o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was examined as RW4 and he has stated that though he was a Director of the company in liquidation, he was not in-charge of the day-to-day affairs of the company and he had no knowledge of affairs of the company to file a statement before the Official Liquidator and therefore, he has reasonable cause for having not filed the statement of affairs. There is nothing on record to doubt the veracity of the claim of the said witness so as to point out that they were in-charge of the affairs. 12. Having noticed the evidence tendered by the respondents to defend their action, in my view, the evidence tendered by the first respondent as RW1 would be more relevant since if the cause shown therein is accepted, the act of respondent Nos. 2 and 5 also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to the company was also in the premises and has been taken over by the Bank, the first respondent has addressed a letter to the Manager, which is produced at Ex.D5 and the acknowledgements are as at Annexures-D6 to D9. These aspects would indicate that there was reasonable cause for the respondents in not complying with the requirement. 15. It is no doubt true that if at all any further proceedings are to be initiated by the Official Liquidator either to compel the respondents to secure the records for the purpose of evaluating the assets of the company or for recovery of the same from the appropriate persons or in the event the Official Liquidator is in a position to plead and prove misfeasance on the part of respondent Nos. 1, 2 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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