ANUJAN NAMBUDIRIPAD Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) The appellants are exdirectors of the Wandoor Jupitor Chits (P) Ltd. However, they were not directors of that company on 11-10-1973 when a provisional liquidator was appointed to that company nor on 20-12-1973 when that company was ordered to be wound up. The appellant in M.F.A. 166 of 1976 was not a director of that company after November 1970, and the two appellants in the other case were not directors of the said company after March 1972 and April 1972 respectively. While so, the learned Judge by his order of 4-11-1975 on Report No. 74 submitted by the Official Liquidator directed him to call for statements as contemplated by S.454 of the Companies Act, 1956 from, amongst others, the former directors. The Official Liquidator requested each of the appellants as per his letter of 14-11-1975 to file within a month thereof a statement of affairs of the company as on the date the concerned appellant ceased to be a director of the company. On receipt of these letters the appellants filed Company Application 613 and 620 of 1975 on 18th and 17th of December 1975 respectively. In the former of the two applications the reliefs sought for are, to direct the Official Liquidator to withdraw his 'notices' dated 14-11-1975 and to declare that the two applicants therein are not liable to file statement of affairs of the company, and in the other the prayer is, to exempt the applicant therein From filing statement of affairs. By the common order under appeal the learned Judge dismissed the two applications.

(2.) It is contended that the Official Liquidator did not apply to the court for an order directing the appellants to submit a statement of affairs as envisaged by R.125 of the Companies (Court) Rules, 1959, that he required them to file statement of affairs not after forming an opinion that they are liable to furnish such statements but as per the direction of the court and that the appellants were thus denied the opportunity to satisfy that they are not liable to furnish statements, which they are entitled to under R.125 of the Rules, There is no merit in any of these contentions Under the first part of S.454(2) of the Companies Act persons who were directors on the 'relevant date' date of appointment of provisional liquidator and where no such appointment has been made, date of winding up order and the person, who on that date was the manager, secretary or other Chief Officer of the company have perforce to submit and verify to the Official Liquidator the statement of affairs of the company. The latter part of that sub-section enables the Official Liquidator, 'subject to the direction of the court' to require the persons mentioned in clauses (a) to (d) therein to submit and verify the statement. The court has, therefore, power to direct the Official Liquidator to call for such statements from all or any of the persons mentioned in clauses (a) to (d), and the Official Liquidator is empowered by the section itself to require all or any of them to submit and verify a statement of affairs of the company Even otherwise under S 451 of the Act the Liquidator is bound to perform such duties as the court may impose on him. R.125 enables the Official Liquidator to move the court for an order directing any person who, in his opinion, is liable to furnish a statement of affairs under S.454, to prepare and submit such a statement of concur in making the same, and the court, to pass such an order after giving notice to the person against whom the order is sought. A requisition made by the Official Liquidator is clearly different from an order passed by the court under R.125 which, as is seen from Form 56, is issued from the court and under the signature of the Registrar of this court. R.125 appears to have been framed with the object of compelling a person who is recalcitrant to submit the statement, or to concur thereto, be he one who has perforce to submit the statement unrequired by the Official Liquidator, or one who is obliged to submit it only on being required by the Official Liquidator to do so. R.125 neither limits the power of the Official Liquidator to require the persons mentioned in clauses (a) to (d) of S.454(2) submit and verify a statement of affairs of the company, nor curtails the jurisdiction of the court to give direction to the Official Liquidator in that behalf, and, at this stage no question of hearing the person who is required to submit the statement arises.

(3.) The next question raised is as to whether the appellants who ceased to be directors some time before 'relevant date' (11-10-1973) can be said to be 'persons who have been officers of the company' so as to attract clause (a) of S.454(2) of the Act. It is not disputed, and rightly so in view of S.2(30) of the Act, that the term 'Officer' normally includes a director also. The argument is that the use of the present perfect tense: 'have been', would indicate that unless a person was an 'officer' on the relevant date or immediately preceding that date, he could not be said to 'have been an officer', and since persons who were directors on the relevant date are obliged to submit the statement even without the Official Liquidator asking for it, clause (a) should, so far as directors are concerned, be confined to such of them who were directors just before the relevant date. The words: 'have been' are used in clause (a) to borrow the language of Fry. L. J. In Ex Parte, Pratt 1884 (12) Q.B D. 334 as did the Supreme Court in The State of Bombay (now Maharashtra v. Vishnu Ramachandra AIR 1961 SC 307 'to express hypothesis without regard to time', namely the proposition that the persons mentioned in the above said clause, shall have been officers of the company at some time or other, as where one says that 'he is one who has been convicted, meaning thereby that that person is one who was at some time or other convicted. The hypothesis or assumption may be right; or it may be wrong.