OFFICIAL LIQUIDATOR HIGH COURT Vs. MAHENDRA PRASAD

JUDGEMENT

(1.) Heard learned Counsel for the official liquidator as well as learned Counsel for Sri Mahendra Prasad, who was one of the petitioners filing this company petition but after winding up order has been relegated as defendant No. 1.

(2.) This company petition had been filed on December 10, 1998, by Sri Mahendra Prasad, his wife and three sons and Mahendra Prasad and Sons, Hindu undivided family through its karta, Sri Mahendra Prasad under the provisions of Section 433(e) and (f) read with Section 439(3) and (4) of the Companies Act, 1956 (hereinafter referred to as "the Act" for the sake of brevity) praying that Shree Vishnu Roller Flour and Oil Mills P. Ltd. (hereinafter referred to as "the company under liquidation") may be wound up under the provisions of the Act and that any other order found just and proper be passed. In the said company petition, the company under liquidation was made opposite party No. 1, whereas Sri Naresh Kumar, the full brother of Sri Mahendra Prasad was impleaded as opposite party No. 2. Subsequently after hearing the persons concerned, a Bench of this Court vide order dated May 2, 2003, held that it was evident that the substratum of the company had gone and the company was not in a position to carry on the business and in that view of the matter, it was just and equitable to wind up the company and the official liquidator was appointed as the liquidator of the company to proceed in the matter further in accordance with law. Since then the company under liquidation through the official liquidator became the petitioner and other parties were relegated as the defendants.

(3.) It transpires that after winding up order, the said defendants did not submit the statement of affairs of the company before the official liquidator within the time prescribed as per the provision of Section 454 of the Act. Thus, the official liquidator filed his report dated December 21, 2004 (Flag-20) stating that the ex-directors, namely, Sri Mahendra Prasad and Sri Naresh Kumar, have not submitted the statement of affairs in spite of notices sent to them, nor they have submitted any application for extension of time with the official liquidator or before the court, and, hence, he prayed that the said ex-directors be asked to submit all other account books and records up to May, 2003 and the official liquidator may be permitted to file prosecution against the ex-management of the company under the provision of Section 454(5) of the Act as already stated in the report of the official liquidator dated September 6, 2004 (Flag-15).