SARKAR ESTATES (P) LTD Vs. GOSTHO BEHARI SARKAR

JUDGEMENT

(1.) On or about May 11, 1964, this application was made by the Official Liquidator for orders that (a) this Hon'ble Court may take cognizance of the offence committed by the Respondents by reason of their non-compliance with the provisions of Section 454(1) of the Companies Act, 1956 and this Hon'ble Court may be pleased to try the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1888, for the trial of summons case by a Magistrate, (b) if this Hon'ble Court comes to a finding on such trial that the Respondents or any of them are guilty of the said offence, then the said Respondent be punished in accordance with the provisions of Section 454(5) of the Companies Act, 1956, (c) in the alternative, the said Respondents be directed to file their statement of affairs within the time to be fixed by this Hon'ble Court and (d) the said Respondents be directed to make over the books of account, records, papers and documents of the company forthwith to the Official Liquidator and various other orders.

(2.) In 1945, the Sarkar Estates (P) Ltd. was incorporated. On September 7, 1959, a petition for winding up was filed. On March 4, 1960, a winding up order was made but the same was not to take effect for three weeks. On April 2, 1960, the Official Liquidator took symbolical possession of the registered office of the company. On July 19, 1960, an order was made on the application of the Official Liquidator inter alia, directing the ex-directors to make over possession to the Official Liquidator all the books, records and assets of the company within seven days of the date of the order. On August 29, 1960, the key of the door of the registered office was handed over to the Official Liquidator. He, however, did not get actual possession of the office rooms, the office books and records and assets. On or about February 22, 1961, the Official Liquidator demanded delivery of the books, papers and documents. On April 7, 1961 Pulin Behari Sarkar, the Respondent No. 3, stated through his solicitors that Pulin Behari Sarkar was never in possession of the books, records and documents and that the same were kept and maintained by Gostho Behari Sarkar. On April 25, 1961, the Official Liquidator renewed his demand for delivery of possession of the registered office of the company along with its books, records, documents and assets. On April 29, 1961, the Respondent No. 3 referred back to his earlier letter dated April 7, 1961. On May 20, 1961, Gostho Behari Sarkar wrote a letter through his solicitors stating, inter alia, that the office of the company is situate in the room in possession of Gostho Behari Sarkar, but the same room is full of his personal belongings and further threatened the Official Liquidator. On June 20, 1961, the Official Liquidator renewed his demand for the possession of the books, records and assets of the company and further required the Respondents to file a statement of affairs within 24 hours. On June 26, 1961, it appears that the Judge's Summons was taken out. On February 3, 1962, the Official Liquidator took possession of the registered office by opening it but found no books, records and assets of the company therein. On May 11, 1964, an order was made by his Lordship the Hon'ble Mr. Justice B.C. Mitra in this application inter alia, directing Gostho Behari Sarkar to file the statement of affairs within four weeks from date. The order was, however, made without prejudice to the contentions of Gostho Behari Sarkar that the other directors are also bound to file the statement of affairs. Thereafter, this application came up for hearing before me.

(3.) Mr. Bikash Sen, learned Counsel appearing for the Respondent No. 3, Pulin Behari Sarkar, sought to resist the orders prayed for on more than one ground, in the facts stated herein read with the provisions of Section 454 of the Companies Act.