OFFICIAL LIQUIDATOR Vs. K KRISHNA KUMAR

JUDGEMENT

(1.) This Company Application is filed under sub-sections (5) and (5-A) of Section 454 of the Companies Act, 1956 (hereinafter referred to as 'the Act') for summoning the respondent herein i.e., Koganti Krishna Kumar and to punish him under sub-section (5) of Section 454 of the Act for non-compliance of the requirements of Section 454 of the Act and to direct him to file forthwith the Statement of affairs as required by sub-sections (1), (2) and (3) of Section 454 of the Act.

(2.) In the affidavit filed in support of the Company Application, it is stated that this Court passed winding up order on 17-11-1989 in Company Petition No.30 of 1985 directing the winding up of Chlorate India Limited and that the Official Liquidator has become the Liquidator of the Company under Section 449 of the Act. It is further stated that notice was issued under Sections 454 and 456 of the Act to the respondent herein on 16-1-1990 to submit the Statement of affairs and also to deliver possession of the assets, books and papers of the Company and that inspite of that notice, the Statement of affairs has not been filed by the respondent herein. It is further stated that under letter dt.8-1-1990 the respondent informed that he had resigned as Director of the Company with effect from 19-9-1981. It is asserted that under Section 454 of the Act, the erstwhile Directors of the Company are officers of the Company "and therefore he is duty bound to file Statement of affairs with the Official Liquidator within 21 days from the date of winding up of the Company". It is stated that the respondent herein did not comply with the requirements of Section 454 of the Act and that therefore he had committed default in complying with the statutory requirements of sub-sections (1), (2) and (3) of Section 454 of the Act though sufficient time and opportunity had been given, and, therefore, he is punishable under sub-section (5) of Section 454 of the Act and this Court can take cognizance of the offence in view of sub-section (5-A) of Sec.454 of the Act.

(3.) Even without summons being ordered and served on the respondent, Mr. V.S. Raju filed his vakalat for him on 12-7-1991 and on the same day also filed his counter affidavit dated 10-7-1991. Therein the respondent states that he submitted his resignation from the Board of Directors of the Company with effect from 19-9-1981 by his letter of the same date addressed to the managing Director of the Company and also communicated the said fact to the Registrar of Companies, Andhra Pradesh, Hyderabad by letter dated 21-9-1981 which was acknowledged by him on 26-9-1981. He also states that he submitted Form No.32 as required under sub-section (2) of Section 303 of the Act as regards his resignation to the directorship of the Company and that he informed the Official Liquidator about his resignation as Director. To establish that he had nothing to do with the Company eversince his resignation as Director in September, 1981, he refers to the fact that the Company had not been sending any notices of its Board meetings and that he had not been attending any Board meetings since then. He submits that he had neither intimate knowledge of the affairs of the Company nor the possession of any assets, books of accounts, papers etc., of the Company for submitting Statement of affairs or to deliver the books, records etc., of the Company. He therefore prays that he should be relieved from filing the Statement of affairs of the Company.